IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 3RD FEBRUARY 2009 / 14TH MAGHA 1930 FAO.No. 276 of 2008() --------------------- OS.61/2006 of II ADDL.SUB COURT,KOZHIKODE .................... APPELLANT/PLAINTIFF ----------------------------- C.P. MUJEEB, S/O. MUSTHAFA HAJI, REPRESENTED BY POWER OF ATTORNEY HOLDER, DEVIDASAN.T, AGED 48 YEARS, S/O. BALAKRISHNA MENON, NADUVATTOM AMSOM, DESOM, KOZHIKODE TALUK. BY ADV. SRI.K.M.FIROZ RESPONDENTS/DEFENDANTS ------------------------- 1. M/S. ROYAL HOSPITAL PRIVATE LIMITED, REPRESENTED BY ITS MANAGING DIRECTOR, DR.P.K. CHACKIO, AGED 65 YEARS, PUTHIYANDADI VILLAGE, KOZHIKODE TALUK. 2. DR.P.K. CHACKO, AGED 65 YEARS, S/O. KURIAKOSE, PURAYIDATHIL HOUSE, PUTHIYANDADKI VILLAGE, KOZHIKODE TALUK. 3. P.P. JAMALU, S/O. HYDRU HAJI, RESIDING AT VADAKKAD VILLAGE, VYLATHUR DESOM, THOZHIYUR.P.O, CHAVAKKAD TALUK, THRISSUR DISTRICT. 4. P.P. ASHIK, S/O. HYDRU HAJI, RESIDING AT VADAKKAD VILLAGE, VYLATHUR DESOM, THOZHIYUR.P.O, CHAVAKKAD TALUK, THRISSUR DISTRICT. 5. P.P. ANWAR, S/O. HYDRU HAJI, RESIDING AT VADAKKAD VILLAGE, VYLATHUR DESOM, THOZHIYUR.P.O, CHAVAKKAD TALUK, THRISSUR DISTRICT. 6. P.P. FASALU, S/O. HYDRU HAJI, RESIDING AT VADAKKAD VILLAGE, VYLATHUR DESOM, THOZHIYUR.P.O, CHAVAKKAD TALUK, THRISSUR DISTRICT. 7. HYDRU HAJI, S/O. BAPUTTY, RESIDING AT VADAKKAD VILLAGE, VYLATHUR DESOM, THOZHIYUR.P.O, CHAVAKKAD TALUK, THRISSUR DISTRICT. 8. RADHIKA, AGED 54 YEARS, W/O. LATE KORAMPARAMBIL SIDHARTHAN, VENEERI AMSOM, NEDUNGOTTUR DESOM, KOZHIKODE TALUK. 9. K. RAMAKRISHNAN, AGED 56 YEARS, S/O.K.C. PANICKER, RESIDING AT KOLLOTH HOUSE, WEST HILL.P.O, KATCHERI AMSOM, PUTHIYANDADI VILLAGE, KOZHIKODE TALUK. R1 BY SENIOR ADVOCATE SRI.K.P.DANDAPANI ADV. SRI.MILLU DANDAPANI FOR R1-2 SRI.JAWAHAR JOSE FOR R9 SRI.K.K.MOHAMED RAVUF FOR R8 SRI.G.SREEKUMAR (CHELUR) FOR R7 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 03/02/2009, ALONG WITH FAO NO.277 OF 2008 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: KURIAN JOSEPH & P.R.RAMACHANDRA MENON, JJ. ------------------------------------------------- F.A.O.Nos.276 & 277 of 2008 -------------------------------------------------- Dated this the 3rd day of February, 2009 JUDGMENT Kurian Joseph,J. These are appeals filed by the plaintiff. The former is against the judgment dated 15-10-2008 in O.S.No.61 of 2006 and the latter against the order dated 15-10-2008 in I.A.No.3213/2008. As per the order in the interlocutory application, an application filed under Order XI Rule 21 was allowed. The suit is one filed for specific performance. Defendants denied the execution of the agreement. Thereafter the defendants filed an application for production of the original of the agreement since the same was not produced at the time of filing of the suit. The plaintiff submitted that the original was misplaced and the same could be produced at the time of the trial. Thereafter the defendants filed an application invoking the power under Order XI Rule 21 CPC for dismissal of the suit. That was allowed. Hence the appeal. 2. The judgment under appeal, F.A.O.No.276/2008, is the consequential order dismissing the suit. 3. Heard Sri.Firoz, learned counsel appearing for the appellant, Sri.Dandapani, learned senior counsel appearing for respondents 1 and 2, Sri.Sreekumar (Chellur) appearing for respondents 3 to 7 and F.A.O.Nos.276 & 277 of 2008 -:2:- Sri.Mohammed Ravuf appearing for the 8th respondent. In the nature of the order we propose to pass in these appeals it may not be proper and necessary for this court to go into the elaborate contentions advanced by the counsel on both sides, since we are of the view that the order under appeal is liable to be set aside. The effect of non- production of the original of the agreement in a suit for specific performance is also a matter that can be gone into by the trial court, in view of the submission that the document was misplaced and it could be produced later. Learned counsel for the appellant submits that even if the original of the document is not produced also, the suit is otherwise maintainable and is liable to be decreed. These are all matters for the trial court to consider on appreciation of the evidence before it at the time of trial. It is only in the interests of the parties that a quietus is given once for all by the trial court itself on trial of the suit. In the background of the litigations between the parties pertaining to the subject matter also on two earlier rounds before this court, we are of the view that the trial court should dispose of the suit expeditiously, within the time frame fixed by this court in these appeals. All the parties before us agree that they will co-operate with the trial and they will not ask for any unnecessary adjournment so as to unsettle the schedule fixed by this court. In that view of the matter F.A.O.Nos.276 & 277 of 2008 -:3:- we set aside the order and judgment under appeals. The parties will appear before the trial court on 16-2-2009. Written statement, if any, by the parties, if not already filed, shall be filed before that date and replication, if any, shall be filed on or before 28-2-2009. The suit will be listed for trial on 3-3-2009 and the trial shall be conducted on a day-to-day basis and the suit shall be finally disposed of on or before 31-3-2009. The appeals are allowed as above. (KURIAN JOSEPH, JUDGE) (P.R.RAMACHANDRA MENON JUDGE) ahg. KURIAN JOSEPH & P.R.RAMACHANDRA MENON, JJ. --------------------------- F.A.O.Nos.276 & 277 of 2008 ---------------------------- JUDGMENT 3rd February, 2009