IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 19TH MAY 2010 / 29TH VAISAKHA 1932 AS.No. 39 of 1999() ------------------------ OS.587/1995 of II ADDL.SUB COURT,KOZHIKODE .................... APPELLANT(S): IST PLAINTIFF IN SUIT. ----------------------- DR. L.S. SOUMINDRANATHAN, S/O. SANKARAN VYDIAR, AGED 58 YEARS, RESIDING AT MYCENAE APPARTMENT, NAGARAM AMSOM DESOM OF KOZHIKODE.(DIED) 2. AMRUTHA, AGED 18 YEARS, D/O. SOUMINDRANATHA, RESIDING AT MYCENAE, APPARTMENT, NAGARAM AMSOM DESON, KOZHIKODE. IT IS RECORDED THAT THE SOLE APPELLANT DIED. THE ADDL. 2ND APPELLANT NOW IMPLEADED AND 5TH RESPONDENT, ALREADY IN THE PARTY ARRAY, ARE RECORDED AS THE PARTY ARRAY ARE RECORDED AS THE LEGAL REPRESENTATIVES OF THE DECEASED SOLE APPELLANT AS PER ORDER DTD. 22.5.2000 ON CMP. 254/2000. BY ADV. SRI.V.V.SURENDRAN SRI.R.SUDHISH RESPONDENT(S): DEFENDANTS AND 2ND PLAINTIFF IN SUIT. ------------------------ 1. M/S. PANKAJ BUILDERS , 8/70, CORPORATION OFFICE ROAD, KOZHIKODE 32, REP.BY ITS MANAGING PARTNER, PANKAJ KUMAR A., BHULANI, AGED 46 YEARS. 2. KAMALA BEN T., SHENGVI, AGED 65 YEARS, W/O. LATE T.R.SHENGVI, RESIDING AT PADIYAT BHAVAN, MENACHHADEVI STREET, PROF. K.T.SHAH ROAD, KUTCH MANDVI, GUJARATH. A.S. NO.39/1999 3. MRS. PUSHPAL PRAKASH BHULANI, AGED 37 YEARS, W/O. PRAKASH CHANDER A. BHULANI, RESIDING AT 27/360, MADHUBEN, MAVOOR ROAD, KOZHIKODE. 4. M/S. WINDSOOR BUILDERS, 8/71 REP.BY PARTNER PRAKASH CHANDER BHULANI. 5. DR. MRS. M.K.SUBHALAKSHMI, AGED 47 YEARS, W/O. DR. SOUMINDRANATH, RESIDING AT MYCENAE APARTMENT, NAGARAM AMSOM DESOM OF KOZHIKODE. R1 TO R4 BY ADV. SRI.N.JAMES KOSHY SRI.P.SANJAY THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 19/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss M.N. KRISHNAN, J. = = = = = = = = = = = = = = = A.S. NO. 39 OF 1999 = = = = = = = = = = = = = = = Dated this the 19th day of May 2010. J U D G M E N T This appeal is preferred against the judgment and decree passed by the Subordinate Judge, Kozhikode in O.S.587/95. There were 13 suits filed of which the learned Subordinate Judge dismissed three and one among them is the present suit O.S.587/95. The Court in paragraph 13 of the judgment held that the plaintiffs did not tender any evidence. The Court opined that, “When the fabric of the plaint claim is based on fraud and the relief sought are based on such allegations, and especially when the date of knowledge of the respective plaintiffs about the alleged fraud is the very basis of saving limitation the failure on the part of these plaintiffs or their authorised representatives to give evidence is much affecting the sustainability of the prayer in those suits.” A.S. 39 OF 1999 -2- So the Court found that evidence had not been let in. It is submitted by the learned counsel for the appellant that the plaintiff was suffering from cancer and it was on account of the ailment he was prevented from entering the box. I feel in such circumstances the Court should have shown some indulgence and granted time. Therefore I am inclined to grant an opportunity without making any findings on merits. Therefore the judgment and decree under challenge are set aside and the matter is remitted back to the trial court for fresh consideration with a direction to permit all concerned to produce documentary as well as oral evidence in support of their respective conditions and then the matter be disposed of in accordance with law. Parties are directed to appear before the trial Court on 25.6.2010. M.N. KRISHNAN, JUDGE. ul/- A.S. 39 OF 1999 -3- M.N. KRISHNAN, J. = = = = = = = = = = A.S. No. 39 OF 1999 = = = = = = = = = = = J U D G M E N T 19th May, 2010.