IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 3RD APRIL 2009 / 13TH CHAITHRA 1931 WP(C).No. 9280 of 2009(O) OS.1736/2006 of PRL.MUNSIFF COURT,THRISSUR PETITIONER: --------------- GOPALAN,S/O.THENCHATH VEETTIL REMAN NAIR KURUMBILAVU VILLAGE, DESOM, THRISSUR. BY ADV. SRI.P.SANTHOSH (PODUVAL) SMT.R.RAJITHA RESPONDENT: --------------- BALAN, S/O. THENCHATH VEETTIL RAMAN NAIR KURUMBILAVU VILLAGE, DESOM, THRISSUR. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON ON 03/04/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF PLAINT IN O.S.NO.1736/06 BEFORE THE PRINCIPAL MUNSIFF COURT, THRISSUR. EX.P2 TRUE COPY OF WRITTEN STATEMENT FILED BY THE SECOND AND THIRD DEFENDANTS IN O.S.NO.1736/2006. EXT.P3 TRUE COPY OF DOCUMENT NO.354/05 OF KATTOOR SRO. EXT.P4 TRUE COPY OF I.A.NO.2310/09 IN O.S.NO.1736/06.\ EXT.P5 TRUE COPY OF I.A.NO.2308/09 IN O.S.NO.1736/06. EXT.P6 TRUE COPY OF ORDER IN I.A.NO.2310/09 IN O.S.NO.1736/06 DATED 16.3.2009 OF THE PRINCIPAL MUNSIFF'S COURT, THRISSUR. EXT.P7 TRUE COPY OF ORDER IN I,.A.NO.2308/09 IN O.S.NO.1736/06 OF THE PRINCIPAL MUNSIFF'S COURT, THRISSUR. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// AHZ/ K.T.SANKARAN, J. ------------------------------------------------------ W.P.(C) NO. 9280 OF 2009 O ------------------------------------------------------ Dated this the 3rd April, 2009 JUDGMENT The petitioner is the third defendant in O.S.No.1736 of 2006, on the file of the Court of the Munsiff of Thrissur. The suit was filed by the respondent for partition of the plaint schedule property. He claimed one- fifth share. The suit was filed in the year 2006. 2. The contention of the writ petitioner/3rd defendant in the suit is that the plaint schedule property was already partitioned as per the partition deed dated 25.2.2005. The plaintiff is not a signatory to that document. The contention of the third defendant is that the plaintiff was aware of the partition, but he could not sign because he was not present in station. The suit was posted in the special list for trial on 7.3.2009. On that day, the case was adjourned to 10.3.2009. In the nature of the contentions raised by the parties, the defendants had to adduce evidence first. Probably, they did not anticipate the same. It is stated that on 10.3.2009, recording of evidence commenced. On 11.3.2009, the petitioner filed Exts.P4 and P5 applications (I.A.Nos.2310 of 2009 and 2308 of 2009 respectively). I.A.No.2310 of 2009 was filed for summoning the Village Officer to give evidence and to produce the Basic Tax Register W.P.(C) NO.9280 OF 2009 :: 2 :: in respect of 10.5 cents in Sy.No.804/3 of Kurumbilavu Village. In the affidavit accompanying the application, it is stated that the plaintiff was paying basic tax for the property allotted to him as per the partition deed dated 25.2.2005. I.A.No.2308 of 2009 was filed to receive the witness schedule. In the witness schedule, three witnesses are shown. It is stated that witness Nos.1 and 2 are the persons who witnessed the partition and participated in the measurement of the properties. Witness No.3 is the Village Officer. The court below, by the order dated 16.3.2009, dismissed both the applications mainly on the ground of delay. While dismissing I.A.No.2310 of 2009, it was also noticed by the court that in the pleadings, there is no mention of the document sought to be summoned from the Village Office. 3. Though notice was served by special messenger, the respondent has not entered appearance. 4. Learned counsel for the petitioner submitted that the evidence in the case is closed and the arguments were over. Judgment is not passed since an interim stay of disposal of the suit was granted. 5. It is true that there is delay on the part of the petitioner. The witness schedule should have been filed earlier. The question is whether W.P.(C) NO.9280 OF 2009 :: 3 :: the evidence should be shut out on the ground that there are laches on the part of the petitioner. When the suit was listed for trial, the court below thought that the petitioner cannot be allowed to summon the documents and to examine the witnesses and thus cause delay in the disposal of the suit. It cannot be said that the view taken by the court below is wrong. But, at the same time, I am of the view that the inconvenience caused to the plaintiff can be compensated in terms of costs and the petitioner can be permitted to examine the witnesses, though there was delay in making the application. Accordingly, the Writ Petition is allowed, Exts.P6 and P7 orders passed by the court below are set aside and I.A.Nos.2310 of 2009 and 2308 of 2009 are allowed on condition that the petitioner shall pay a sum of Rs.3,500/- as costs to the plaintiff on or before 8.4.2009. If the petitioner fails to pay the costs, the Writ Petition shall be treated as dismissed. If the petitioner complies with the direction to pay costs within time, the court below shall issue summons to the witnesses and allow the petitioner to examine them. (K.T.SANKARAN) Judge ahz/