IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 8641 of 2010(O)
1. ARAVINDAKSHAN PILLAI,
... Petitioner
Vs
1. GOPALA PILLAI ANIYAN PILLAI
... Respondent
For Petitioner :SRI.C.RAJENDRAN
For Respondent :SRI.E.NARAYANAN
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :31/05/2010
O R D E R
THOMAS P. JOSEPH, J.
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W.P.(C) No.8641 of 2010
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Dated this the 31st day of May, 2010.
JUDGMENT
Respondent/plaintiff though served on this Writ Petition, remains absent.
2. This Writ Petition is in challenge of Exts.P4 and P5, orders
dated 02.03.2010 and 09.03.2010 on I.A.Nos.833 of 2010 and 898 of 2010 in
O.S.No. 315 of 2004 of the court of learned Sub Judge, Kollam. That is a suit
filed by respondent for recovery of money based on an agreement allegedly
executed by the petitioner. But, petitioner would say that he had no transaction
with respondent and instead, while borrowing Rs.30,000/- from one Vijayakrishna
Pillai, his maternal uncle he had given a signed blank stamp paper containing
only the last sentence now seen in the disputed document (as if the document is
executed by the petitioner in his own hand). Petitioner wanted that document
to be examined by an expert and accordingly that document was sent to the
expert for examination and Ext.P3, report was obtained. When the case was
included in the list for trial petitioner wanted the expert to be examined to prove
his case. Learned counsel states that case was posted for trial in the list on
04.03.2010 but I.A.No.833 of 2010 (to examine expert) was filed on 24.02.2010.
That application was not called in open court but rejected on 02.03.2010 which
did not come to the notice of petitioner. Hence, under the impression that
I.A.No.833 of 2010 has been misplaced among court records petitioner filed
W.P.(C) No.8641/2010
2
I.A.No.898 of 2010 for the same relief. Bu that application was dismissed for the
reason that I.A.No.833 of 2010 was rejected. Hence Exts.P4 and P5, orders are
challenged in this Writ Petition. Learned counsel contends that examination of
expert is essential to prove case of petitioner.
3. I am not going into the controversy whether I.A.No.833 of
2010 was disposed of by learned Sub Judge in open court. It is seen that
application was rejected for the mere reason that it is belated. Having regard to
the facts and circumstances of the case I am persuaded to think that learned
Sub Judge ought to have considered I.A.No.833 of 2010 on merit rather than
rejecting the same as belated and thereby foreclosing right of petitioner to
examine expert. Ext.P4, order on I.A.No.833 of 2010 therefore is liable to be set
aside. Since it is for same relief that I.A.No.898 of 2010 is filed and I have held
that Ext.P4, order is liable to be set aside it is not necessary to interfere with
Ext.P5, order.
Resultantly the Writ Petition is allowed and Ext.P4, order on
I.A.No.833 of 2010 is set aside. Learned Sub Judge is directed to consider that
application on merit and pass appropriate orders as to the prayer of petitioner to
summon expert for examination.
THOMAS P.JOSEPH,
Judge.
cks
