High Court Kerala High Court

Binoy Varghese vs Sreekumar on 7 August, 2009

Kerala High Court
Binoy Varghese vs Sreekumar on 7 August, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 21185 of 2009(P)


1. BINOY VARGHESE
                      ...  Petitioner

                        Vs



1. SREEKUMAR, S/O.KUTTAN
                       ...       Respondent

                For Petitioner  :SRI.G.SUDHEER

                For Respondent  :SRI.M.SREEKUMAR

The Hon'ble MR. Justice S.S.SATHEESACHANDRAN

 Dated :07/08/2009

 O R D E R
                    S.S.SATHEESACHANDRAN, J.
                    -----------------------------------
                    W.P.(C).No.21185 of 2009 - O
                    ---------------------------------
               Dated this the 7th day of August, 2009

                            J U D G M E N T

The writ petition is filed seeking the following reliefs:

“i) To issue a writ of certiorari calling for the records

leading to Ext.P7 and quash the same.

ii) To allow Ext.P6 petition in O.S.No.402/2001 on

the file of II Additional Sub Court,

Thiruvananthapuram.”

2. Petitioner is the defendant in O.S.No.402/2001 on the

file of the II Additional Sub Court, Thiruvananthapuram. Suit is

based on a promissory note and respondent is the plaintiff. In

the written statement, among other contentions, petitioner

disputed his signature in the pro note produced before the court

on which suit claim was raised. On the request of the defendant

the court ordered for sending over the pro note to an expert for

forensic examination. However, defendant was not available to

give his admitted signature for comparison as he is employed in a

gulf country. So, the order passed for sending over the

document to an expert for examination was suo motu reviewed

W.P.(C).No.21185 of 2009 – O

2

by the court and the petition of the defendant was dismissed.

Ext.P7 is the copy of that order. Propriety and correctness of

Ext.P7 order is challenged in this writ petition invoking the

supervisory jurisdiction vested with this Court under Article 227

of the Constitution of India.

3. I heard the counsel on both sides.

4. It is submitted by the counsel for the petitioner that

petitioner could not appear before the court for the sole reason

he is employed abroad. If two weeks time is granted, he will

appear and give his signatures for comparison of those signatures

with the signature appearing in the pro note. Learned counsel fro

the respondent submitted that because of the dilatory tactics

taken by the petitioner/defendant, the trial of the suit, instituted

in 2001, could not be completed till date. Suit claim based on

the pro note is for a sum of Rs. 3 Lakhs. Having regard to the

long delay, after the institution of the suit, I find indulgence can

be shown to the petitioner/defendant only on terms.

Petitioner/defendant shall pay a sum of Rs.10,000/- to the

respondent/plaintiff as a condition precedent for allowing him to

W.P.(C).No.21185 of 2009 – O

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have forensic examination of pro note as previously ordered by

the court under Ext.P3 order. Cost so ordered shall be paid to

the counsel appearing for the respondent in this Court within two

weeks from today. If cost is not paid as directed within the

stipulated time, the writ petition shall stand dismissed without

any further orders. Ext.P7 order shall stand set aside subject to

the condition stated above and the petitioner is granted three

weeks time after payment of the cost to the respondent to give

his signature before the court for comparison with the signature

appearing in the pro note to send it over to the expert for

forensic examination. The court below is directed to remove the

case from the list if it has already been included in the list for

trial.

The writ petition is disposed of subject to the directions as

stated above. For report, post after two weeks.

S.S.SATHEESACHANDRAN,
JUDGE.

bkn/-