IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 26TH MAY 2010 / 5TH JYAISHTA 1932 WP(C).No. 782 of 2010(O) ------------------------ OS.613/1991 of PRINCIPAL SUB COURT, PALAKKAD .................... PETITIONER: --------------- K.S.RAMACHANDRAN S/O. K.A.SEETHARAMAIYER KOLAPPADAM, ERIMAYUR VILLAGE, NEAR S.R.U.P.SCHOOL KUNNISSERY POST, ALATHUR TALUK, PALAKKAD DISTRICT. BY ADV. SRI.O.RAMACHANDRAN NAMBIAR SRI.GEEN T.MATHEW RESPONDENT: --------------- K.S.ANANTHARAMAN S/O.K.A.SEETHARAMAIYER, KUNNISSERY VILLAGE KUNNISSERY AMSOM, ALATHUR TALUK, PALAKKAD DISTRICT ADV. SRI.V.G.ARUN SRI.T.R.HARIKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 782 of 2010(O) APPENDIX PETITIONER'S EXHIBITS:- EXHIBIT P1: Plaint in O.S.No.613/1991 before the Sub Court, Palakkad. EXHIBIT P2: Additional written statement in O.S.No.613/1991 before the Sub Court, Palakkad. EXHIBIT P3: I.A.No.4094/2009 in O.S.No.613/1991 before the Sub Court, Palakkad dtd.4/12/2009. EXHIBIT P4: I.A.No.4095/2009 in O.S.No.613/1991 before the Sub Court, Palakkad dtd.4/12/2009 EXHIBIT P5: I.A.No.4146/2009 in O.S.No.613/1991 before the Sub Court, Palakkad dtd. 5/12/2009. EXHIBIT P6: Extract of the order dtd.5/1/2010 in OS.No.613/1991 before the Sub Court , Palakkad. RESPONDENT'S EXHIBITS:- EXHIBIT R1(a): Written Statement in O.S.286/91 dtd.28/11/1992 EXHIBIT R1(b): Judgment in OS.286/91 DTD.7/6/1993. EXHIBIT R1(c): C.M.P.No.450/94 filed by the petitioner in A.S.No.656/93 dtd.31/1/1994. EXHIBIT R1(d): Order in R.P.29/05 dtd.28/9/2007. True copy P.A. to Judge THOMAS P JOSEPH, J. ---------------------------------------- W.P.C.No.782 of 2010 --------------------------------------- Dated this 26th day of May, 2010 JUDGMENT Defendant in O.S.No.613 of 1991 of the Sub Court, Palakkad has filed this petition under Article 227 of the Constitution to set aside Ext.P6, order dated 05-01-2010 and to issue direction to the learned Sub Judge not to proceed with hearing of O.S.No.613 of 1991 filed by respondent for recovery of possession of the suit property on the strength of title. Petitioner resisted the suit and filed written statement. Later he filed Ext.P2, additional written statement which I am told by the learned counsel for petitioner has been received by the learned Sub Judge. Thereafter, petitioner filed Exts.P3 to P5, applications to raise additional issues in the light of contentions raised in Ext.P2, additional written statement, to receive additional documents in evidence and to issue a commission to assess value of improvements effected as stated in Ext.P5, application. Grievance of petitioner is that without considering Exts.P3 to P5 the case was posted for trial on 05-01- 2010 and that day as respondent had no oral evidence Exts.A1 to A9 were marked on his side and the case was posted for hearing on 12-01-2010 vide Ext.P6, order. Petitioner contends that he is : 2 : prejudiced as learned Sub Judge has not disposed of Exts.P3 to P6 before trial. Learned counsel for respondent submits that controversy raised by the petitioner has already been settled by the decisions in O.S.No.286 of 1991 as confirmed by the appellate court in A.S.No.635 of 1993 where rejecting the contentions of petitioner that the present suit property which was also an item scheduled in O.S.No.286 of 1991 was partible, the count found that the said suit property was not available for partition. 2. When Exts.P3 to P5 were filed by the petitioner, necessarily learned Sub Judge was required to dispose of the same after considering the rival contentions and the materials on record before starting with recording evidence of respondent. To that extent, Ext.P6, order cannot be sustained and is liable to be set aside. Needless to say that the parties will get sufficient opportunity to adduce evidence in respect of their respective contentions Resultantly the writ petition is allowed in the following lines. (i) Ext.P6, order posting the case for hearing is set aside. (ii) Learned Sub Judge shall dispose of Exts.P3 to P5 applications after considering the contentions raised by the contestants and after referring to the materials on record. : 3 : (iii) Learned Sub Judge shall make every endeavour to dispose of the suit as expeditiously as possible since I am told that the parties have crossed the age of 80. . (THOMAS P JOSEPH, JUDGE) Sbna/-