IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 19TH MARCH 2010 / 28TH PHALGUNA 1931 WP(C).No. 7651 of 2010(O) ------------------------------------- (IA.NO.2101/2010 IN OS.NO.947/2008 OF SUB COURT,ERNAKULAM) .................... PETITIONER: ------------------- SATHYANANDHAN, AGED 42, S/O.KUMARAN, RESIDING AT PULLORTHUNIYIL HOUSE, UDAYA ROAD, THAIKUDAM.P.O, VYTILA, ERNAKULAM. BY ADVS. MR.K.RAMACHANDRAN, SMT.H.SUBHALEKSHMI, MR.S.SREEDEV. RESPONDENTS: ------------------------ 1. JAYASHREE SANTHOSH, AGED 37 YEARS, RESIDING AT PADMA VILAS, WEST KUNDANNOOR, U.C.P.O, ALUVA-2. 2. SAJAMMA, W/O.MANOHARAN, AGED 50 YEARS, RESIDING AT MANU NIVAS, LPS ROAD, PALLI NADA, THAMMANAM.P.O. 3. RAJAMMA, W/O.BABY, AGED 48 YEARS, RESIDING AT ELANJIKKOOTTIL, NADAKAVU.P.O, UDAYAMPEROOR. 4. SEEMA MAHESH, AGED 34 YEARS, RESIDING AT KUDILALPARAMBIL HOUSE, FAC ROAD, PONNURUNNI, VYTTILA, KOCHI. BY ADV. MR.K.R.VINOD. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/03/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.7651/2010-O: APPENDIX PETITIONERS' EXHIBIT: EXT.P.1: COPY OF THE AFFIDAVIT AND PETITION IN I.A. 2101/2010 DTD. 06/03/2010 BEFORE THE HON'BLE SECOND ADDITIONAL SUB COURT, ERNAKULAM. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. Prv. P.BHAVADASAN, J. ------------------------------------- WP(C) No.7651 of 2010-O ------------------------------------- Dated 19th March 2010 Judgment This is a petition filed under Article 227 of the Constitution of India, assailing the order dated 06.03.2010 in IA No.2101/10 in OS No.947/08, passed by the Second Additional Sub Court, Ernakulam. 2. The petitioner is the third defendant in the suit, filed by the respondents herein, which was one for partition. The respondents herein are his sisters. The petitioner resisted the claim for partition on the basis of a will executed by his father. His father expired on 12.10.2008. 3. Issues were settled and the case was listed for trial. An Advocate Commissioner was appointed to take out evidence in the matter. But at the time of taking steps against the attesting witnesses of the will, the petitioner came to know that both of WPC 7651/10 2 them were working abroad. So the petitioner took steps against the other witnesses and the Court below issued summons to those witnesses. On 27.02.2010, no witness turned up and the warrants were returned. 4. The petitioner pointed out that though he was present on that day, he was not examined as the respondents insisted for the examination of the petitioner and the attesting witnesses on the same day. Various other facts are also stated in this Petition, which are not very relevant for the present purpose. Suffice to say that the application filed by him as IA No.2101/10 praying to grant further time to produce his witnesses, was dismissed by the Court below by the impugned order, which is assailed in this Petition. 5. The writ petitioner has necessarily to prove the will produced by him. For that purpose, the attesting witnesses have to be examined and their evidence needs to be taken. The petitioner has pointed WPC 7651/10 3 out that both of them are working abroad. This Court is given to understand that they will be available by the end of April 2010 or in May. The petitioner had been making earnest efforts to make available the attesting witnesses for the purpose of examination and taking evidence and in such circumstances, the Court below ought not have declined the prayer made in Ext.P1 application. Therefore, the impugned order is set aside and the petitioner is given time till June 2010 to make available the attesting witnesses for examination and the Court below is directed to dispose of the suit within three months thereafter. The Petition is disposed of as above. P.BHAVADASAN, JUDGE sta WPC 7651/10 4 WPC 7651/10 5