IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 30852 of 2009(O)
1. SARASWATHY AMMA
... Petitioner
Vs
1. CHANDRASEKHARAN NAIR
... Respondent
For Petitioner :SRI.BINDU SREEKUMAR
For Respondent : No Appearance
The Hon'ble MR. Justice V.RAMKUMAR
Dated :29/10/2009
O R D E R
V. RAMKUMAR, J.
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W.P. (C ) No. 30852 of 2009
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Dated: 29th October, 2009
JUDGMENT
The plaintiffs in O.S. No. 128 of 2008 on the file of the
Munsiff’s Court, Ettumanoor are the petitioners in this Writ
Petition. The prayer in this Writ Petition is to declare Exts. P5
and P9 orders as illegal and to set aside the same, to allow
Exts.P3 and P6 for re-opening the evidence of the first plaintiff
and for a direction to permit the first plaintiff to adduce
evidence.
2. The aforesaid suit is one for partition and separate
possession of the plaintiffs share over 11 items of immovable
properties including a residential building. The first petitioner
is the first plaintiff who had two sons namely deceased
Radhakrishnan Nair and the defendant Chandrasekharan
Nair. The 2nd plaintiff is the widow of Radhakrishnan Nair and
plaintiffs 3 and 4 are the son and daughter of the said
Radhakrishnan Nair . The first plaintiff has crossed 85.
According to her at a time when she was residing with the
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defendant she had transferred her share over the suit
properties including the house to her grandchildren namely
defendants 3 and 4 . Infuriated by that, she was driven out of
that house by the defendant and she claims to be residing with
her daughter -in-law and children. The present suit was filed
thereafter seeking partition and separate share of plaintiffs 1
to 4 over the 11 items of properties.
2. The suit was resisted by the sole defendant on
various grounds including one that the suit properties if
properly valued would take the suit beyond the pecuniary
jurisdiction of the court below. All sorts of dilatory tactics
were adopted by the defendant to prolong the disposal of the
suit. As per Ext.P1 judgment dated 21-08-2009 of this Court in
W.P. (C ) No. 21010/09, this Court, after hearing both sides,
directed the Munsiff’s Court to dispose of the suit within a time
frame which will expire on 14-11-2009.
3. The proof affidavit of the first plaintiff was filed in
Court and she was not cross-examined by the defendant. Two
attestors to the sale deed executed by the first plaintiff were
examined as P.Ws 1 and 2. Plaintiffs’ evidence was closed and
the case was posted for defence evidence. The defendant
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adduced oral evidence by examining six witnesses all of whom
were cross-examined on behalf of the plaintiffs. Thereafter the
defendant filed Ext.P2 application directing the plaintiffs to
produce the original of two documents which were alleged to be
in the custody of the plaintiffs. The said petition is stated to
have been entertained by the Court below which was not
justified in doing so at that fag end of trial. The plaintiffs are
alleged to have filed an affidavit stating that they are not in
custody of those documents. Thereafter the plaintiff filed Ext.P3
application (I.A. 960/2009) seeking to re-open the plaintiffs’
evidence so as to receive in evidence six documents mainly to
show that the defendant had admitted that the first plaintiff was
in possession of the suit properties. As per Ext.P5 order dated
27-9-2009 the trial court dismissed Ext.P3 petition. Thereafter
the defendant filed Ext.P4 (I.A. 959 of 2009 for re-opening the
defence evidence and to receive certain documents in evidence) .
The said I.A., which deserved to be dismissed in limine, is stated
to be pending. The plaintiffs, thereafter, filed Ext.P6 (I.A. 972 of
2009) seeking the examination of the first plaintiff on
Commission. On the next day, that is, on 27-10-2009 the first
plaintiff personally appeared before the Court below and offered
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to examine himself by filing a memo. The learned Munsiff
thereafter passed the impugned Ext.P9 order dated 28-10-2009
dismissing I.A. 972 of 2009 (Ext.P6) holding that the memo filed
by the first plaintiff seeking her examination in Court was
dismissed as not pressed. According to the plaintiffs the memo
filed by the Ist plaintiff was suo motu advanced by the Court
below to record that it was dismissed as not pressed. The
petitioners/plaintiffs would have it that it was certain contentions
raised by the defendant during evidence which necessitated the
plaintiffs to file an application to examine the first plaintiff
initially on commission and subsequently in Court and to
receive in evidence additional documents. The petitioners
would contend that the court below by dismissing the said
application as per Ext.P9 order making certain observations on
the merits has created a fear in the mind of the petitioners that
the Court below is inclined to take a view in favour of the
defendant. Hence, this Writ Petition.
4. In my view the above apprehension of the petitioners is baseless. This is a case in which after hearing
both sides, this Court as per judgment dated, 21-08-2009 in W.P.
(C ) No. 21010/09 directed the court below to dispose of the suit
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within a time frame. Even before that the case stood listed for
trial, both sides had sufficient opportunities to produce
documents during the pre-trial steps. Admittedly, the
defendant did not cross-examine the first plaintiff who had filed
a proof affidavit. The evidence of both sides having been
closed, the only course open to the Court was to post the case
for final hearing and, accordingly, the case stands posted for
final hearing on tomorrow i.e. the 30th day of October 2009.
This Writ Petition is accordingly disposed of directing the Court
below to dispose of the suit on the evidence already on record
and untrammelled by any observations or findings on the merits
made in the impugned order dated 28-10-2009.
Dated this the 29th day of October 2009.
Sd/- V. RAMKUMAR,
(JUDGE)
/true copy/
ani.