IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 5TH JUNE 2008 / 15TH JYAISHTA 1930 WP(C).No. 3952 of 2008(U) ------------------------- OS.590/2005 of I ADDL.SUB COURT,ERNAKULAM .................... PETITIONER: -------------------- M/S. FOUR SQUARE ESTATES (P) LTD., 9D KATTIKARAN TOWERS, ERNAKULAM, COCHIN-682 018, REPRESENTED BY ITS MANAGING DIRECTOR OF K.M.VARGHESE. BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) RESPONDENTS: ------------------------ 1. REALITY PROJECTS AND ENTERTAINMENTS PVT.LTD.,G-36/2176,KADAVANTHRA ROAD, COCHIN-682 017, REPRESENTED BY ITS MANAGING DIRECTOR. 2. THARIAN JOSEPH, S/O.LATE K.P.PAPPAN, AGED 43 YEARS, 27/1423, KANNARKAT HOUSE, PANAMPILLY NAGAR, COCHIN-682 036. 3. C. VINOD, S/O.VASUDEVAN NEDUNGADY, AGED 45 YEARS, RESIDING AT NEITHA WARRIAM ROAD, COCHIN-682 016. 4. RABY JOSEPH, S/O. LATE V.C.JOSEPH, AGED 47 YEARS, RESIDING AT 6C, SURYAKANTHY APARTMENTS, IYYATTIL JUNCTION, CHITTOOR ROAD, COCHIN-682 018. 5. SURESH THOMAS, S/O.LATE SRI.THOMAS MATHEW, AGED 35 YEARS, PANAMTHOTTATHIL HOUSE, PAZHAVANGADI P.O., RANNI-689 673. 6. SUJA GEORGE, W/O. SRI. GEORGE, AGED 44 YEARS, SURESH BHAVAN, CHOWPATTY SEA FACE, MUMBAI-400 007. BY ADV. SRI.B.N.SHIVSANKAR - R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/06/2008 ALONG WITH WPC.NO.11802 OF 2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.3952/2008 U APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE I.A.553/08 FILED BY THE PLAINTIFF. EXT.P2: COPY OF THE ORDER IN I.A.555/08 DTD. 18/01/08. EXT.P3: COPY OF THE ORDER DTD. 18/01/2008 IN I.A.553/08 IN O.S.590/05 OF ADDL.SUB COURT, ERNAKULAM. /TRUE COPY/ P.S.TO JUDGE Kss M.SASIDHARAN NAMBIAR,J. =========================== W.P.(C) NO.3952/2008 & 11802 OF 2008 =========================== Dated this the 5th day of June, 2008 JUDGMENT Petitioners in W.P(C)3952/2008 are the plaintiffs. Petitioners in W.P.(C)11802/2008 are the defendants. Suit was filed claiming a decree for declaration that first plaintiff Company is the sole cestui que trust in equity and law of the plaint schedule properties holding that defendants are bound to act as constructive trustees of the plaintiffs in respect of the property and to restrain defendants by a permanent prohibitory injunction from holding or dealing with the plaint schedule properties other than for the benefit of first plaintiff Company finding that sale deed Nos.3092/2005 and 3093/2005 are sham transactions and thereby void and not binding on the first plaintiff Company and also to appoint second plaintiff as the Manager or receiver of the plaint schedule property to manage the same. Suit was W.P.(3952 & 11802 of 2008 2 resisted by defendants 1 to 4. Defendants 5 and 6 though raised a counter claim are not seriously challenging the allegations of the plaintiffs. After closing the evidence on the side of plaintiffs, suit was posted for the evidence of defendants to 17.1.2008. On that date, learned Sub Judge directed defendants 5 and 6 to adduce evidence. They did not adduce evidence though a proof affidavit and documents were produced. Learned Sub Judge therefore examined and recorded evidence of the contesting defendants and posted the suit for arguments to 18.1.2008. At that stage plaintiffs filed I.A.553/2008 to receive the minutes of first plaintiff Company as evidence. Under Ext.P3 order it was dismissed. Plaintiffs also filed I.A.555/2008 an application to direct attendance of second defendant for cross examination on the basis of the affidavit filed on 17.1.2008 and also to direct Ravikumar who is said to be the Managing Director of first defendant Company. Under Ext.P2 order learned Sub Judge, W.P.(3952 & 11802 of 2008 3 Ernakulam allowed that petition in part and directed second defendant to be present to enable plaintiffs to cross examine him. The prayer to examine Ravikumar was rejected. W.P.(C) 3952/2008 is filed challenging Ext.P3 order refusing to receive the document as evidence. On 18.1.2008 defendants 5 and 6 filed I.A.554/2008 with a direction to adjourn the case to seven days to enable them to adduce evidence. Under Exts.P2 and P4 orders both the petitions were dismissed. Those orders are challenged in W.P.(C) 11802/2008. 2. Learned counsel appearing for petitioners and learned counsel appearing for contesting respondents were heard. 3. It cannot be disputed that when the suit was posted for further evidence on 17.1.2008, defendants 5 and 6 who even according to petitioners go partly with the plaintiffs, did not adduce evidence as directed by the court. It is thereafter evidence of contesting respondents were recorded and evidence was closed and suit was W.P.(3952 & 11802 of 2008 4 posted for arguments. At that stage plaintiffs filed I.A.553/2008 to receive a document which was dismissed under Ext.P3 order. The argument of the learned counsel appearing for petitioners is that if defendants 3 and 4 were examined, plaintiffs could have confronted the documents and in that case there would not have been any necessity to produce the document and as they were not examined. Plaintiffs were compelled to produce the documents after closing of the evidence and in such circumstance, Sub Judge should not have dismissed the application. There is force in the submission. In the interest of justice learned Sub Judge should have received the document subject to the admissibility and proof of the document, which is to be considered in the suit. Therefore Writ Petition 3952/2008 is allowed and Ext.P3 order is set aside and I.A.553/2008 stands allowed to the extent of receiving the document subject to proof and admissibility. 4. It is true that defendants who are siding W.P.(3952 & 11802 of 2008 5 with the plaintiffs or partly siding with the plaintiffs should have adduced evidence before contesting defendants adduced their evidence. It is for that reason, Sub Judge directed defendants 5 and 6 to adduce evidence before the contesting defendants adduced their evidence and on the failure of defendants 5 and 6 to adduce evidence recorded the evidence of the contesting defendants. It is for that reason, the learned Sub Judge dismissed the application filed by defendants 5 and 6 to adduce evidence at a later stage. Though technically the order passed by the Sub Judge is correct, in the interest of justice defendants 5 and 6 are to be permitted to adduce evidence. The prejudice if any caused to the contesting defendants, who led evidence before recording the evidence of defendants 5 and 6 could be removed by permitting them to adduce further evidence if necessary. Hence W.P.(C) 11802/2008 is also allowed. Ext.P4 order is set aside and defendants 5 and 6 are permitted to adduce W.P.(3952 & 11802 of 2008 6 evidence. Learned counsel appearing for the parties submitted that the suit now stands posted to 18.6.2008. Defendants 5 and 6 are directed to be present on that date and adduce evidence. Learned Sub Judge is directed to dispose the suit as expeditiously as possible, at any rate, within two months from the date of receipt of a copy of this judgment. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006