IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 17TH DECEMBER 2009 / 26TH AGRAHAYANA 1931 WP(C).No. 36587 of 2009(O) -------------------------- OS.99/2007 of PRINCIPAL SUB COURT, N.PARAVUR .................... PETITIONER(S): --------------- 1. MRS. BABY W/O.LATE RAMAKRISHNAN AGED 60 YERAS, HOUSE WIFE, CHEMMALIL HOUSE MANNAM THURUTH, VARAPUZHA. 2. BINOY S/O.LATE RAMAKRISHNAN AGED 38 YEARS, BUSINESS, CHEMMANNIL HOUSE MMANAMTHURUTH, VARAPUZHA. 3. BIJU, S/O.LATE RAMAKRISHNAN AGED 40 YEARS, BUSINESS, CHEMMANNIL HOUSE MANNAMTHURUTH, VARAPUZHA. 4. BINDU SURESH, W/O.SURESH, AGED 35 YEARS HOUSE WIFE, PARAPPILLY VEETTIL, KADAVANTHRA ERNAKULAM VILLAGE, KANAYANNUR TALUK. BY ADV. SRI.VIVEK VARGHESE P.J. SRI.P.J.VINOD JOSEPH RESPONDENT(S): --------------- T.P.TOMY, W/O.PAULOSE, AGED 49 YEARS BUSINESS, RESIDING AT 28/1406,THALIYATH HOUSE K.P.VALLON ROAD, KADAVANTHRA, KOCHI-20. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.36587 OF 2009 (O) ----------------------------------- Dated this the 17th day of December, 2009 J U D G M E N T The writ petition is filed seeking mainly the following relief: i. to issue a writ of certiorari or such other writ or order quashing Ext.P3 order marking and allowing Exhibits A1, A1(a), A1(b), A1(c), A2, A3, A4, A5, A6, A7, A8, A9, A10, A15, A16, A17 and A18 in O.S.No.99/2007 pending in the file of the Sub Court, North Paravur. 2. Petitioners are the defendants in O.S.No.99 of 2007 on the file of the Sub Court, North Paravur. Suit is one for specific performance for an agreement of sale, and the respondent is the plaintiff. Trial of the suit is in progress. Suit document, agreement of sale, which contained some endorsements that after its execution possession was handed WPC.36587/09 2 over on receipt of part of the sale consideration, and also some other documents tendered in evidence by the respondent/plaintiff were objected to by the petitioners/defendants contending that they are inadmissible in evidence. The agreement of sale containing the endorsements made later as to handing over of possession required its registration as such endorsements created an interest over the immovable property, and the document not being registered was inadmissible in evidence, was the objection raised. Some other documents produced which are stated as having been handed over by the defendants and styled as 'power of attorney' but unsigned by the executants, were also objected to on the ground that they could be marked only by the persons who are stated to have prepared such documents or the person shown as the author appointing the power of attorney. The learned Sub Judge, after expressing his views over the admissibility of the agreement of sale negatived the objections raised over its admissibility and allowed it to be marked in evidence subject to the right of the petitioners/defendants to raise their challenge during the WPC.36587/09 3 cross examination. So far as the objection raised against the other documents which are styled as power of attorney, the objections were overruled. Propriety and correctness of the order so passed by the learned Sub Judge is challenged in the writ petition producing a typed copy of that order (Ext.P3) invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 3. I heard the learned counsel for the petitioners. Having regard to the submissions made and taking note of the facts and circumstances presented, I find no notice to the respondent is necessary, and, hence, it is dispensed with. In the light of the settled law laid down by the apex court with respect to marking of the documents in the course of recording of evidence subject to the objections raised for consideration at a later stage as reported in Bibin Shanthlal Panchal v. State of Gujarat and another (AIR 2001 SC 1158), I find interference with the impugned order passed by the learned Sub Judge invoking the visitorial jurisdiction of this Court is not called for. The apex court in the above WPC.36587/09 4 decision has observed thus: “When so recast, the practice which can be a better substitute is thus: Whenever an objection is raised during evidence taking stage regarding the admissibility of any material or item of oral evidence the trial court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment. If the Court finds at the final stage that the objection so raised is sustainable the Judge or Magistrate can keep such evidence excluded from consideration. In our view there is no illegality in adopting such a course. (However, we make it clear that if the objection relates to deficiency of stamp duty of a document the Court has to decide the objection before proceeding further. For all other objections the procedure suggested above can be followed.” The learned Sub Judge has relegated the consideration of admissibility of the agreement of sale to a later stage reserving the right of the petitioners/defendants to raise challenges to its admissibility during the cross examination. But it is seen some views had also been expressed over the admissibility of the document. That is a matter to be WPC.36587/09 5 considered at a later stage after marking the document subject to and noting of the objection. In the given facts of the case, I find that the petitioners/defendants have to be permitted to canvass their challenges raised against the documents marked as 'power of attorney' also at the stage of final arguments in the case. The court has to consider the objections raised on the challenges over the documents, which are marked subject to the objections, after closing of the evidence in the final arguments of the case. Whatever be the objections raised by the petitioners/defendants, needless to point out, it has to be considered untrammelled by any of the observations made in Ext.P3 order and in accordance with law. Subject to the above observations, the writ petition is closed. S.S.SATHEESACHANDRAN JUDGE prp