E.J.Sebastian vs M.M.Sebastian on 17 June, 2010

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Kerala High Court
E.J.Sebastian vs M.M.Sebastian on 17 June, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 4389 of 2010(O)


1. E.J.SEBASTIAN, AGED 80 YEARS, S/O.CHANDY
                      ...  Petitioner
2. ANNAKUTTY SEBASTIAN, AGED 70 YEARS,

                        Vs



1. M.M.SEBASTIAN, S/O.MATHEW, WORKER,
                       ...       Respondent

2. ESKI, S/O.VELUCHAMI WORKER, VILAK,

                For Petitioner  :SRI.M.P.RAMNATH

                For Respondent  : No Appearance

The Hon'ble MR. Justice THOMAS P.JOSEPH

 Dated :17/06/2010

 O R D E R
                             THOMAS P. JOSEPH, J.
                            --------------------------------------
                             W.P.(C) No.4389 of 2010
                            --------------------------------------
                      Dated this the 17th day of June, 2010.

                                      JUDGMENT

Petitioners approached the court of learned Munsiff, Devikulam with a

suit on the belief that they will get a decree for prohibitory injunction against

respondents. Respondents resisted the suit on the hope that their contention will

be accepted and suit will be dismissed. With that belief and hope both sides

adduced oral and documentary evidence. Learned Munsiff vide Ext.P7,

judgment held that petitioners are not entitled to the reliefs prayed for and

consequently dismissed the suit. The matter did not end there. Learned Munsiff

was of the view that parties as well as their witnesses are guilty of perjury and

forgery in that false evidence was let in and forged documents were made use

of in the evidence. Learned Munsiff directed that an enquiry be conducted

against the parties and their witnesses. Learned Munsiff ordered that Exts.A1,

B1 and B2 are impounded and will be destroyed as per the rules relating to

destruction of records. It was directed that parties and witnesses against whom

that direction was issued shall appear before the learned Munsiff on 12.01.2009

to show cause why they shall not be proceeded against. Petitioners challenged

dismissal of the suit before the learned District Judge in A.S.No.5 of 2009 and

moved I.A.No.11 of 2009 for stay of direction relating to enquiry into the alleged

perjury and impounding of the document. Learned District Judge after hearing

both sides felt that prima facie the trial court finding is well-founded and refused

WP(C) No.4389/2010

2

to order stay. That order (Ext.P11) is under challenge in this Writ Petition. This

Court while admitting the Writ Petition granted interim stay which is in force now

also. Learned counsel for petitioners contended that in so far as the appeal

has been taken on file and the matter is pending consideration of learned

District Judge were parties have the opportunity to show that no question of

perjury or forgery is involved and seek reversal of the direction issued by the

learned Munsiff to conduct enquiry, learned District Judge ought to have stayed

the direction for conducting the enquiry until disposal of the appeal. It is the

contention of the learned counsel that the very fact that appeal was taken on file

indicated that it is not a case where the appeal could be dismissed as without

any merit under Order 41 Rule 11 of the Code of Civil Procedure.

2. Though notice was served on the respondents, there is no

appearance for them.

3. I have gone through Ext.P7, judgment of the learned Munsiff and

Ext.P11, order which is under challenge in this Writ Petition. For the time being I

am not at the question whether learned Munsiff was legally and factually correct

in arriving at the conclusion that parties and their witnessess have committed

perjury or that Exts.A2, B1 and B2 are the result of forgery. Those matters are

under consideration before the learned District Judge in that the appeal has

been taken on file. The parties have the opportunity to impress the learned

District Judge that finding entered by the learned Munsiff is not correct and

WP(C) No.4389/2010

3

request for reversal of that finding and direction for enquiry, and in such a

situation it was only appropriate that further proceedings pursuant to Ext.P7,

judgment of learned Munsiff is kept in abeyance till the appeal is disposed of. I

find no reason why the request of petitioners to that effect should be rejected.

Resultantly, this Writ Petition is allowed in the following lines:

i. Ext.P11, order is set aside.

ii. There will be a stay of further proceedings pursuant to the direction

issued by learned Munsiff to conduct enquiry into alleged perjury and forgery,

impounding and destruction of the documents, in respect of the petitioners,

respondents and witnessess involved until disposal of the appeal.

iii. The fate of the direction of learned Munsiff and the enquiry to be

conducted will depend on the finding and direction that the learned District

Judge makes in A.S.No.5 of 2009.

THOMAS P.JOSEPH,
Judge.

cks

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