IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 26TH SEPTEMBER 2011 / 4TH ASWINA 1933 OP(C).No. 2779 of 2011(O) ------------------------- AGAINST THE ORDER DATED 17/08/2011 IN IA 4021/2011 IN OS.6/2005 of I ADDL.SUB COURT, KOZHIKODE .................... PETITIONER (S): -------------------- T.K.GANGAN MENON, S/O.P.K.K.MENON,AGED 50 YEARS,THERAMBATTIL HOUSE, THERAMBATTIL HOUSE,KASABA AMSOM DESOM, KOZHIKODE TALUK BY ADV. SRI.R.BINDU (SASTHAMANGALAM) SRI.PRASANTH M.P RESPONDENT(S): --------------- GOPALAKRISHNAN @ BABU, S/O.NARAYANAN NAMBIAR,AGED 50,KELOTH HOUSE, EDAKKADU VILLAGE,EDAKKADU DESOM, KANNUR. BY ADV. SRI.T.SETHUMADHAVAN SRI.PUSHPARAJAN KODOTH SRI.K.JAYESH MOHANKUMAR SMT.VANDANA MENON THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 26/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C)NO.2779/2011 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE PLAINT IN OS NO.6/2005 EXT.P2 TRUE COPY OF THE AGREEMENT DATED 19.2.1999 EXT.P3 TRUE COPY OF THE WRITTEN STATEMENT IN OS 6/2005 EXT.P4 TRUE COPY OF THE ISSUES FRAMED IN OS 6/2005 EXT.P5 TRUE COPY OF JUDGMENT IN WP(C)NO.3696/2007 ATED 29.5.2007 EXT.P6 TRUE COPY OF THE APPLICATION FILED BY THE PETITIONER DATED 6.8.2011 EXT.P7 TRUE COPY OF THE ORDER DATED 17.8.2011 IN IA NO.4021/2011 IN OS 6/2005 //TRUE COPY// THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.2779 of 2011 -------------------------------------- Dated this the 26th day of September, 2011. JUDGMENT Petitioner is the 1st plaintiff in O.S.No.6 of 2005 of the court of learned First Additional Sub Judge, Kozhikode. That is a suit for redemption of mortgage and for injunction. Petitioner pleaded discharge as per an agreement dated 19.02.1999 (allegedly) executed between petitioner and the respondent, produced its photocopy along with the plaint and claimed that its original is with the respondent. Respondent filed Ext.P3, written statement denying the existence of any such agreement dated 19.02.1999. There was a connected suit – O.S.No.288 of 2007 filed by the respondent. Petitioner, while so, filed Ext.P6, application to direct respondent produce the original of (alleged) agreement dated 19.02.1999. According to the petitioner, no objection was preferred to that application. But, learned counsel for respondent contends that objection was preferred on 16.08.2011 contending that there is no such agreement in existence and that respondent is not in possession of any such agreement. Learned Sub Judge dismissed Ext.P6, application by Ext.P7, order as belated. The said order is under challenge. 2. Learned counsel for petitioner contends that respondent did not file any affidavit disputing execution of agreement dated 19.02.1999. Learned counsel for respondent points out from Ext.P3, written statement that in OP(C)No.2779/2011 2 paragraph 7, it is specifically contended that no such agreement was executed on 19.02.1999 and that the claim that respondent is in possession of original of the agreement dated 19.02.1999 is not correct. 3. Though the learned Sub Judge dismissed Ext.P6, application for the reason that it is belated, in the light of the stand taken by the respondent in Ext.P3, written statement that there was no such agreement executed on 19.02.1999 and that respondent is not in possession of the original of the said agreement, the request in Ext.P6, application cannot be allowed. In that view of the matter, I am not inclined to interfere with the order (Ext.P7). But I make it clear that in the light of the stand taken by the respondent as to the existence of alleged agreement dated 19.02.1999, it is open to the petitioner to prove due execution of the (alleged) agreement as provided under law. With the above observation, this Original Petition is dismissed. THOMAS P.JOSEPH, Judge. cks