IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 20TH SEPTEMBER 2010 / 29TH BHADRA 1932 WP(C).No. 23013 of 2010(O) -------------------------- AGAINST THE ORDER IN IA 4004/2009 IN OS.341/2008 of PRINCIPAL SUB COURT,KOLLAM .................... PETITIONER(S): --------------- RAMLA BEEVI, D/O. MYTHEEN KUNJU, KUTTIYIL PUTHEN VEEDU, SOUTH MYNAGAPPALLY.P.O., MYNAGAPPALLY VILLAGE. KOLLAM DISTRICT. BY ADV. SRI.B.KRISHNA MANI RESPONDENT(S): --------------- 1. SREE GOKULAM CHITS AD FINANCE COMPANY (P) LTD., REPRESENTED BY POWER OF ATTORNEY HOLDER P.D. MADHUKUMAR, LEGAL CLERK,KOLLAM BRANCH. 2. NAZARUDEEN, SHAN MANZIL, KADAPPA, MYNAGAPPALLY.P.O. KOLLAM DISTRICT. 3. SHAJEELA, SHAN MANZIL, KADAPPA, MYNAGAPPALLY.P.O., KOLLAM DISTRICT. ADV. SRI.K.S.BABU FOR R1 SMT.N.SUDHA FOR R1 SMT.N.V.SANDHYA FOR R2 & R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.23013/2010 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE PLAINT OS NO.341/2008 BEFORE THE SUB COURT, KOLLAM DATED 2.5.2008 EXT.P2 TRUE COPY OF THE APPLICATION IA NO.4004/2009 IN OS 341/2008 BEFORE THE SUB COURT, KOLLAM DATED 23.9.2009 EXT.P3 TRUE COPY OF THE OBJECTION DATED 18.2.2010 EXT.P4 TRUE COPY OF THE AGREEMENT WITH THE 3RD RESPONDENT ON 4.10.2007 EXT.P5 TRUE COPY OF THE SALE DEED DATED 18.4.2008 EXT.P6 TRUE COPY OF THE TAX RECEIPT DATED 22.4.2008 EXT.P7 TRUE COPY OF THE ORDER DATED 24.3.2010 IN IA NO.4004/2009 IN OS 341/2008 BEFORE THE SUB COURT, KOLLAM DATED 23.9.2009 //TRUE COPY// THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.23013 of 2010 -------------------------------------- Dated this the 20th day of September, 2010. JUDGMENT Petitioner made a claim (Ext.P2) to the attached property, 6.07 ares in resurvey No.298/1/8 under Order XXXVIII Rule 8 of the Code of Civil Procedure (for short, “the Code”). When that application came up for hearing learned Principal Sub Judge observed that the petition is not verified by the parties and for that reason, dismissed the same vide Ext.P7, order. That order is under challenge. 2. I have heard learned counsel on both sides. 3. It is pointed out by learned counsel for respondent that the affidavit in support of Ext.P2, application has not been authenticated by persons competent to do so. Going by copy of the affidavit it is seen that the affidavit is not sworn to before an Advocate or other competent person. Only the deponent has signed in it. Hence the affidavit is defective. But, learned Sub Judge could have granted time to petitioner to cure the defect by filing a proper affidavit rather than straight away dismissing the application which has only resulted in prolonging the case. Having regard to the facts and circumstances and on hearing learned counsel for both sides I am inclined to think that petitioner has to be given an opportunity to cure the defect by filing a proper affidavit. WP(C) No.23013/2010 2 Resultantly, Ext.P3, order is set aside and Ext.P2, application is remitted to the court of learned Principal Sub Judge, Kollam who shall give petitioner opportunity to cure the defect by filing a proper affidavit within reasonable time to be fixed by the learned Sub Judge. Parties shall appear in that court on 30.10.2010. THOMAS P.JOSEPH, Judge. cks