IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 6TH SEPTEMBER 2011 / 15TH BHADRA 1933 OP(C).No. 2915 of 2011(O) -------------------------------------- IA NO.2736/2011 IN O.S.NO.515/2008 OF SUB COURT, PALAKKAD ----------------- PETITIONER/DEFENDANT: ----------------------------------------- PARVAJA, W/O.SWAMINATHAN, AGED 40 YEARS, OORPADAM, KODUMBU, PALAKKAD. BY ADV. SRI.U.BALAGANGADHARAN RESPONDENT(S): PLAINTIFF: --------------------------------------------- PARAMESWARAN NAIR, AGED 67 YEARS, S/O.GOVINDAPILLAI, LAKSHMI MANDIRAM, THEKKETHARA, MARUTHARODE, PALAKKAD. BY THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 06/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts OP(C)NO.2915/2011 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE PLAINT IN OS.NO. 515/2008 DATED 20/10/2008. P2 COPY OF THE PLAINT IN OS 500/2008 DATED 01/9/2008. P3 COPY OF THE WRITTEN STATEMENT IN OS 515/2008 DATED 2/7/2009. P4 COPY OF THE IA 2736/2011 DATED 19/8/2011. P5 COPY OF THE ORDER IN IA 2736/11 DATED 23/8/2011 OF SUB COURT, PALAKKAD. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A.TO.JUDGE sts THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.2915 of 2011 --------------------------------------- Dated this 06th day of September, 2011 JUDGMENT Respondent appears through counsel. 2. This original petition is in challenge of Ext.P5, order dated August 23, 2011 filed by the petitioner/defendant to recall PWs.1 and 2 in O.S.No.515 of 2008 of the Court of learned Sub Judge, Palakkad for further cross examination. That is a suit for specific performance of an agreement for sale (allegedly) executed by the petitioner. After evidence of respondent was over, petitioner filed I.A.No.2736 of 2011 to recall PWs.1 and 2 but, without specifying the circumstances which necessitated such recall. Learned Sub Judge was not impressed by that application and dismissed it by Ext.P5, order. 3. Learned counsel for petitioner submits that pleadings of the parties are before Court and further examination of PWs.1 and 2 can only be with reference to the plea that petitioner has raised in her written statement. 4. Learned counsel for respondent submitted that the suit was once decreed ex parte since counsel for petitioner reported 'no instruction'. Later, the decree was set aside on O.P(C).No.2915 of 2011 -: 2 :- terms of cost, cost was not paid, petitioner accused that counsel for respondent did not receive the cost and that was found against by the learned Sub Judge but to give an opportunity to contest the case, ex parte decree was set aside. According to the learned counsel, attempt of petitioner is only to protract the proceeding. 5. Assuming that the circumstance which necessitated recall of PWs.1 and 2 is not specifically stated in the affidavit in support of I.A.No.2736 of 2011, if I direct petitioner to supplement her affidavit by a proper affidavit that would only prolong trial of the case. At any rate, I must bear in mind that petitioner is confined to her plea in the written statement and further questions that would be put to Pws.1 and 2 would be confined to her pleadings. Having regard to the circumstances stated, I am inclined to allow the request of petitioner but, considering the circumstances pointed out by learned counsel for respondent, on terms of cost. Resultantly this original petition is allowed. Ext.P5, order is set aside and I.A.No.2736 of 2011 will stand allowed on condition that petitioner paid `.2,000/- (Rupees Two Thousand Only) by way of cost to the respondent and `.1,000/- (Rupees One O.P(C).No.2915 of 2011 -: 3 :- Thousand Only) by way of cost to PW2. The amount shall be deposited in the trial court within two weeks from this day. On compliance as above stated, I.A.No.2736 of 2011 will stand allowed. In case the condition is not complied, this original petition will stand dismissed in confirmation of Ext.P5, order. In case cost is deposited as aforesaid, learned Sub Judge shall recall PWs.1 and 2 for further cross examination. Learned Sub Judge shall expedite the trial and disposal of the case. (THOMAS P JOSEPH, JUDGE) Sbna/-