IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP(C).No. 129 of 2011(O)
1. P.A.XAVIER, S/O.ANTONY, AGED 65 YEARS,
... Petitioner
Vs
1. TRESAMMA, W/O.JOB, PUTHENPURAKKAL
... Respondent
2. JOSEPHINE, W/O.LATE MATHEW,
For Petitioner :SMT.K.A.ANGEL TREENA
For Respondent :SRI.P.N.RAMAKRISHNAN NAIR
The Hon'ble MR. Justice K.T.SANKARAN
Dated :11/02/2011
O R D E R
K.T.SANKARAN, J.
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O.P(C).No.129 OF 2011
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Dated this the 11th day of February, 2011
JUDGMENT
The petitioner is the defendant in O.S.No.321 of
2009 on the file of the Court of the Munsiff II, Kochi.
The suit is for partition. The petitioner relies on a
Will executed in his favour by Varghese and Annie,
later brother and sister of the petitioner. Trial of
the suit commenced. The first respondent/plaintiff was
examined as PW1 and the petitioner was examined as DW1.
It is stated that one of the attesting witnesses in
the Will, namely, Cletus is working in Dubai. It is
stated that leave is granted to Cletus for a period
from 30.4.2011 to 30.5.2011 by the employer. He cannot
come to India before 30.4.2011. Pointing out these
circumstances, the petitioner filed I.A.No.34 of 2011
to adjourn the case and to grant sufficient time to the
petitioner to produce the witness. The learned Munsiff
dismissed the application as per the order dated
7.1.2011 and the evidence was closed.
O.P(C).No.129 OF 2011 2
2. The learned counsel appearing for the
respondents submitted that they are not against granting
reasonable time to the petitioner to produce the
attesting witness to the Will. This submission is being
made to avoid any objection that sufficient opportunity
was not granted to the petitioner to prove his case.
3. In view of the submissions made by the counsel
on either side, I am of the view that a direction can be
issued to the court below to examine the attesting
witness to the Will on the re-opening day after summer
holidays. The trial of the suit in other respects may go
on. But the court below shall not dispose of the suit
without affording an opportunity to examine the
attesting witness to the Will as aforesaid.
The Original Petition is disposed of as above.
K.T.SANKARAN,
JUDGE.
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