IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 7TH JULY 2010 / 16TH ASHADHA 1932 WP(C).No. 21074 of 2010(O) -------------------------- OS.382/2003 of M.C.,PATHANAMTHITTA .................... PETITIONER(S): --------------- THE MYLAPRA SERVICE CO-OPERATIVE BANK LTD.NO.639, MYLAPRA, PATHANAMTHITTA DISTRICT, REPRESENTED BY ITS SECRETARY. BY ADV. SRI.P.V.BABY SRI.A.N.SANTHOSH RESPONDENT(S): --------------- 1. RAJAGOPALAN NAIR, PUTHENPARAMBIL HOUSE, PALAMAROOR MURI, PRAMADOM VILLAGE, PATHANAMTHITTA DISTRICT. 2. SARASAMMA NAIR, W/O. M.P.BHASKARAN NAIR, MELEDATHU BINDU BHAVAN, AZHOOR MURI, PATHANAMTHITTA VILLAGE, KOZHENCHERRY TALUK. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. ------------------------------- W.P.(C) No.21074 of 2010 ------------------------------- Dated this the 7th day of July, 2010 J U D G M E N T Defendant in O.S.No.382/2003 of the Court of learned Munsiff, Patanamthitta is the petitioner before me. According to the petitioner in execution of the awards (Exts.P4 to P6) passed under provisions of the Kerala Co-operative Societies Act (for short 'the Act') 40 cents of land belonging to one Subramania Pillai was assigned to the petitioner as per Ext.P12. While so respondent No.2, claiming title and possession of 10 cents out of the said 40 cents filed O.S.No.382 of 2003 against petitioner. Petitioner resisted that suit raising various contentions including maintainability of the suit in view of Section 100 of the Act. Grievance of petitioner is that in spite of petitioner raising a counter claim and challenging maintainability of the suit, learned Munsiff did not frame an issue regarding maintainability of the suit and proceeded with trial of the suit. Petitioner filed W.P.(C) No.5534 of 2008 which this Court disposed of as per Ext.P10, judgment dated, 13.6.2008 permitting petitioner to move the W.P.(C) No.21074/2010 2 learned Munsiff to frame additional issue regarding maintainability of the suit and to request learned Munsiff to hear that issue as a preliminary issue, if circumstances warranted that. Petitioner states that in spite of request learned Munsiff has not complied with Ext.P19, judgment and has proceeded with trial of the suit recording evidence of parties and witnesses. Evidence of respondent No.2/plaintiff was closed on 21.6.2010 and the case was posted on 25.6.2010. On 23.6.2010 respondent No.2 filed Ext.P23, application to summon certain documents. Accordingly, even without passing any order on the said application and without re-opening the case for evidence of respondent No.2 that application was allowed and the witness was examined. Evidence of petitioner was closed on 29.6.2010. Petitioner filed an application on 25.6.2010 to summon certain witnesses on its side (Ext.P21 is the list of witnesses). Witness No.3 is one Rajagopalan Nair and summons issued to him was returned with the endorsement that he is at Bangalore. Petitioner made an oral request to the learned Munsiff to issue warrant against the said witness since W.P.(C) No.21074/2010 3 he was very much available at station and his examination was necessary to prove contentions raised by petitioner. But that request was rejected by the learned Munsiff orally. Now the case is posted on 8.7.2010 for hearing. Grievance of petitioner is that petitioner was not given sufficient opportunity to adduce evidence and, even now, the issue regarding the maintainability of the suit has not been framed, not to say about learned Munsiff hearing that issue as a preliminary issue inspite of Ext.P19, judgment of this Court. 2. If the issue regarding maintainability of suit has not so far been framed and, if such an issue arises from pleadings of the petitioner, there is no reason to think that the learned Munsiff would not comply with the direction in Ext.P19, judgment. It is open to the petitioner to urge the learned Munsiff to frame an issue regarding maintainability of the suit as directed in Ext.P19 judgment. 3. So far as the request to summon witness No.3 in Ext.P21 list is concerned, if the evidence of petitioner has been W.P.(C) No.21074/2010 4 closed without taking further steps to ensure presence of that witness, I make it clear that it will be open to the petitioner to move appropriate application before learned Munsiff to re-open the case for evidence of petitioner and to issue process to the witness concerned. If such an application is preferred by petitioner, learned Munsiff will consider that application and pass appropriate orders thereon before the case is finally heard and disposed of bearing in mind that parties are to be given all opportunities to adduce their evidence in support of their respective contentions rather than disallowing the prayer for adducing of evidence. Without prejudice to the right of the petitioner to move the learned Munsiff as stated above, I close this writ petition. THOMAS P. JOSEPH, JUDGE. nj.