IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 5TH JUNE 2009 / 15TH JYAISHTA 1931 WP(C).No. 8337 of 2009(O) ------------------------------------- OS.161/2004 of I ADDL.SUB COURT,TRIVANDRUM .................... PETITIONER(S): ---------------------- 1. M.R.JAYASREE, S/O.M.N.RAJAN, RESIDING IN ASWATHY, M.S.P.NAGAR, THIRUMALA, THIRUVANANTHAPURAM, REP. BY HER POWER OF ATTORNEY HOLDER, THE 2ND PETITIONER HEREIN. 2. M.N.RAJAN, RESIDING IN ASWATHY, M.S.P. NAGAR, THIRUMALA, THIRUVANANTHAPURAM. BY ADV. MR.K.B.PRADEEP RESPONDENT(S): ------------------------ 1. KRISHNAMMA, D/O.KUNJULEKSHMY AMMA, SREE SIVAKRISHNA VILASOM, P.R.A.124, POOJAPPURA, SASTHAMANGALAM, VILLAGE, THIRUVANANTHAPURAM. 2. S.SATHEESH KUMAR, S/O.KRISHNAMMA, DO. DO. 3. K.SINDHUKUMARI, D/O.KRISHNAMMA, DO. DO. DO. 4. K.SAJEESH KUMAR, S/O.KRISHNAMMA, DO. DO. 5. SAROJAM, W/O.C.RAJAN, SAROJA BHAVAN, POTTA, VILAVOORKKAL VILLAGE, MALAYINKIL P.O., NEYYATTINKARA TALUK, THIRUVANANTHAPURAM. 6. S.KRISHNA PANICKER, S/O.SANKARA PANICKER, SANKARA VILASAM, KAITHAKUZHY, VILAPPIL, THIRUVANANTHAPURAM. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.8337 of 2009 - O --------------------------------- Dated this the 5th day of June, 2009 J U D G M E N T This writ petition is filed under Article 227 of the Constitution of India seeking the following reliefs: “i) To call for the records leading to the order dated 13.2.2009 passed in I.A.No.1274/09 (Ext.P1 application) and quash the same by issuing a writ of certiorari or any other appropriate writ, order or direction. ii) To issue a direct5ion to the 1st Additional Sub Court, Thiruvananthapuram to issue summons to the witnesses mentioned in the list appended to Ext.P1 application and permit the petitioners/plaintiffs to examine them.” 2. Petitioners are the plaintiffs in O.S.No.161/2004 on the file of Sub court, Thiruvananthapuram. Suit was one for specific performance of an agreement for sale. Respondents in the petition are the defendants in the suit. The case was included in the special list for trial in the month of March, 2009. Two months before, petitioners filed an application for summoning some witnesses to prove their case. Ext.P1 is the petition filed along with witness schedule. The grievance of the W.P.(C).No.8337 of 2009 - O 2 petitioners is that without notice to them, learned Sub Judge dismissed that application on 13.2.2009 holding that the purpose of the examination of the witnesses has not been clearly stated in the petition filed with the witness schedule. Propriety and legality of that order is challenged in this writ petition invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India. 3. Notice was directed to be served on the counsel appearing for the defendants in the court below and accordingly after such service a memo has been filed by the counsel for the petitioner. The memo evidences that such notices were served as early as in 20.3.2009 and 26.3.2009 on the respective counsel. Still none of the respondents entered appearance. 4. I heard the counsel for the petitioner. 5. Having regard to the submissions made by the counsel and perusing the copy of the order passed by the learned Sub Judge on Ext.P1 application, a copy of which was handed over to me at the time of hearing, I find the reason set out by the learned Sub Judge for rejecting Ext.P1 application is erroneous and unsustainable under law. The learned Sub Judge wanted the W.P.(C).No.8337 of 2009 - O 3 plaintiffs to file an affidavit specifying the nature of evidence to be let in through each witness. Yet another reason to dismiss the application was that the court should be satisfied whether the documents sought to be produced by the plaintiff is admissible or relevant in evidence. It is the duty of the court to examine the admissibility and relevancy of the documents produced when it is tendered in evidence and not at the stage of production. Whatever that be, I find the order passed by the learned Sub Judge on Ext.P1, if allowed to stand, would cause irreparable injury to the plaintiff and undoubtedly, it will amount to denial of justice. The order passed by the learned Sub Judge is set aside. The court below shall pass appropriate orders on Ext.P1 application and if no special circumstance is shown as to why the summons should not be issued to the witnesses, it is needless to point out the plaintiff should not be given an opportunity to examine the witnesses named in his witness schedule. The writ petition allowed as above. S.S.SATHEESACHANDRAN, JUDGE. bkn/-