IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 11TH FEBRUARY 2011 / 22ND MAGHA 1932 OP(C).No. 129 of 2011(O) ------------------------ OS.321/2009 of ADDL.MUNSIFF COURT,KOCHI .................... PETITIONER/APPLICANT/DEFENDANT: ---------------------------------------------- P.A.XAVIER, S/O.ANTONY, AGED 65 YEARS, PALLATHASSERRY HOUSE, OCHANTHURUTH P.O., KOCHI-682 508. BY ADV. SMT.K.A.ANGEL TREENA SMT.ARLISS TRENCY ANTONY RESPONDENTS/RESPONDENTS/PLAINTIFFS ----------------------------------------------------- 1. TRESAMMA, W/O.JOB, PUTHENPURAKKAL HOUSE, VALLARPADAM P.O., MULAVUKAD, KOCHI-682504. 2. JOSEPHINE, W/O.LATE MATHEW, PUTHENPURAKKAL HOUSE, VALLARPADAM P.O., MULAVUKAD, KOCHI-682504. ADV. SRI.P.N.RAMAKRISHNAN NAIR FOR R1 & R2 SRI.P.VISWANATHAN FOR R1 & R2 THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 11/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C).No. 129 of 2011 APPENDIX PETITIONER'S EXHIBITS EXT.P1: COPY OF APPLLICATION DTD 7.1.2011 NUMBERED AS I.A.34/2011 IN O.S.NO.321/2009 ON THE FILED OF MUNSIFF COURT – II, KOCHI. TRUE COPY PA TO JUDGE. K.T.SANKARAN, J. ------------------------------ O.P(C).No.129 OF 2011 ------------------------------ 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. cms