IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 10218 of 2009(O)
1. JAINULABDHEEN
... Petitioner
Vs
1. FOUJNEESA & 6 OTHERS
... Respondent
For Petitioner :SRI.G.HARIHARAN
For Respondent :SRI.SAJAN VARGHEESE K.
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :15/09/2009
O R D E R
S.S.SATHEESACHANDRAN, J.
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W.P.(C).No.10218 of 2009 - O
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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
O.S.No.400/2005.
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
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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
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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.
S.S.SATHEESACHANDRAN,
JUDGE.
bkn/-
