Jainulabdheen vs Foujneesa & 6 Others on 15 September, 2009

Kerala High Court
Jainulabdheen vs Foujneesa & 6 Others on 15 September, 2009




WP(C).No. 10218 of 2009(O)

                      ...  Petitioner


                       ...       Respondent

                For Petitioner  :SRI.G.HARIHARAN

                For Respondent  :SRI.SAJAN VARGHEESE K.


 Dated :15/09/2009

 O R D E R
                   S.S.SATHEESACHANDRAN, J.
                   W.P.(C).No.10218 of 2009 - O
           Dated this the 15th day of September, 2009

                            J U D G M E N T

Writ petition is filed seeking the following reliefs:

“i) To set aside Exhibit P7 order passed by the

Munsiff Court, Chittur in I.A.No.982/2009 in


ii) To direct the Munsiff Court, Chittur to

examine Sri.Thajudheen, S/o.Azeez Rawthar, Ootara,

Vadavannur village, Chittur Taluk as defence witness.

iii) To restrain the Munsiff Court, Chittur in

proceeding with O.S.No.400/2005 until giving an

opportunity to the petitioners to examine the

independent witness cited by them.”

2. Petitioners are the two defendants in O.S.No.100 of

2000 on the file of the Munsiff Court, Chittur. Suit is one for

partition and the first respondent is the plaintiff and the other

respondents are the co-defendants in the suit. Petitioners

claimed title and possession over the suit property, which

originally belonged to the father of the first petitioner and

husband of the second petitioner, under an oral gift. The

respondents in the writ petition are the other children of the

second petitioner. In order to substantiate the claim of oral gift,

W.P.(C).No.10218 of 2009 – O


petitioners wanted to examine two witnesses apart from the

second petitioner, the mother. On the date fixed for recording

the evidence of the petitioners, the second petitioner and one

witness, it is submitted, were present. The other witness cited by

the first petitioner to prove the gift was given up. The second

petitioner was examined. But the examination of the witness

produced could not be proceeded with as one of his close

relatives passed away, according to the learned counsel for the

petitioners. The request made by the petitioner to the court

below to have the examination of that witness on a later date

was opposed to by the plaintiff, and the learned Munsiff, after

hearing both sides, turned down that request vide Ext.P7 order.

Propriety and correctness of Ext.P7 order is challenged in the writ

petition invoking the supervisory jurisdiction vested with this

Court under Article 227 of the Constitution of India.

3. I heard the learned counsel on both sides.

4. The examination of the witness could not be carried

out, according to the learned counsel for the petitioner, in view of

the circumstances beyond the control of the petitioners. On the

other hand the learned counsel for the first respondent/plaintiff

submitted that Ext.P7 order of the court below does not warrant

W.P.(C).No.10218 of 2009 – O


any interference, as granting permission to the petitioner to

examine the witness would lead filling up the lacunas of the

evidence of the second petitioner who had already been

examined as a witness in the case. I find the very same reason

canvassed by the counsel found merit and convincing to the

learned Munsiff as well to disallow the request of the petitioners

to examine the witness by providing them a fresh opportunity.

Even assuming that there is some lacuna in the evidence of the

second petitioner, I find it hard to accept the submission that it

can be filled up by examining the other witness and through his

evidence. If there is lacuna, it will remain as a lacuna. That

could not be filled up by evidence of any other witness. Ext.P7

cannot be sustained. I direct the court below to provide an

opportunity to the petitioners to examine the witness to prove

their case. The court may then on the basis of evidence let in

dispose the suit at the earliest.

Writ petition is disposed of as above.



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