IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN WEDNESDAY, THE 26TH NOVEMBER 2008 / 5TH AGRAHAYANA 1930 WP(C).No. 32303 of 2008(U) --------------------------------------------- IA 3148/08 IN OS.152/2004 of II ADDL.SUB COURT,KOZHIKODE .................... PETITIONER: K.SATHYAN, S/O. RARICHAN, PUTHIYANGADI AMSOM, DESOM, REP. BY POWER OF ATTORNEY REEJU, S/O. RAVI, RAVITHA NIVAS, CHETTIKULAM, ELATHOOR, KOZHIKODE DISTRICT. BY ADV. SRI.P.V.KUNHIKRISHNAN SMT.N.S.REHNA RESPONDENTS: 1. MAPPALA RAJU, S/O. KUMARAN, EDAKKAD AMSOM, PUTHIYANGADI DESOM, KOZHIKODE -5. 2. EMBARAKANDI SYAMALA SATHYAN, D/O. KUTTAN, PUTHIYANGADI AMSOM, DESOM, KOZHIKODE TALUK. ADV. SMT.LATHA PRABHAKARAN FOR R2 SRI.K.M.JAMALUDHEEN FOR R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. -------------------------- W.P.(C)No.32303 of 2008 U -------------------------- JUDGMENT Petitioner is the second defendant in O.S.No. 152/04 on the file of the II Additional Sub Court, Kozhikode. The second respondent herein is the first defendant and the first respondent herein is the plaintiff. The suit was instituted for specific performance of a contract for sale of immovable property belonging to the petitioner. 2. According to the petitioner/second defendant, he is working abroad and therefore, he filed I.A.No.3148/08 before the trial court through his power of attorney holder for leave to contest the suit through the power holder. His wife, who was a co-defendant in the suit, resisted the prayer on the ground that the petitioner, who is her husband, is not alive. Obviously, as submitted by the counsel for the petitioner, if he wants to show that he is alive, he has to come over to India, whereas he is now working abroad and that giving WPC 32303/08 2 opportunity for him either to come over to India and prove his existence or believing the averments, the court below should have allowed the power of attorney holder to contest the suit. 3. Counsel for the second respondent/wife submits that the second respondent has not heard of the petitioner from 2004 onwards and therefore, according to her, he is a dead person. All the same, counsel for the second respondent submits that steps under Sections 82 and 83 Cr.P.C. are pending against the petitioner/husband, who is an accused in C.C.No.871/04, registered on the basis of a complaint filed by the wife. 4. It is strange that the wife has contended that the petitioner/husband, who is stated to be working abroad, is not alive, as according to her, ever after 2004, she has not seen him or heard of him. Seven years having been not completed, even on the allegations so stated, there is no presumption under the Evidence Act that he is dead. WPC 32303/08 3 Even on the submissions made by the wife, it is a case where no presumption of death can be drawn and hence the objection raised by the second respondent wife against allowing the power of attorney holder to contest the case on behalf of the petitioner/ second defendant should have been repelled and the application allowed by the court below. 5. In the result, I dispose of this writ petition setting aside Exhibit P4 order and allowing I.A.No.3148/08 as prayed for. 26th November, 2008 (K.P.Balachandran, Judge) tkv