IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 29TH OCTOBER 2009 / 7TH KARTHIKA 1931 WP(C).No. 30852 of 2009(O) -------------------------- OS.128/2008 of MUNSIFF COURT, ETTUMANOOR .................... PETITIONER(S): ----------- 1. SARASWATHY AMMA, D/O. KUNJI AMMA, NJATTUKALAYIL, KULASEKHARAMANGALAM VILLAGE, VAIKOM TALUK, KOTTAYAM, NOW RESIDING AT JEEVAN BHAVAN, VADAYAR VILLAGE, THALAYOLAPARAMBU 2. SARASAMMA RADHAKRISHNAN, W/O. LATE RADHAKRISHNAN NAIR RESIDING AT JEEVAN BHAVAN, VADAYAR VILLAGE, THALAYOLAPARAMBU 3. BHAGATH JEEVAN, S/O.LATE RADHAKRISHNAN NAIR RESIDING AT JEEVAN BHAVAN, VADAYAR VILLAGE, THALAYOLAPARAMBU 4. SANGESWARY, D/O. LATE RADHAKRISHNAN NAIR RESIDING AT JEEVAN BHAVAN, VADAYAR VILLAGE, THALAYOLAPARAMBU BY ADV. SRI.BINDU SREEKUMAR RESPONDENT(S): --------------- CHANDRASEKHARAN NAIR, S/O.LATE SREEDHARAN PILLAI, RESIDING AT NJATTUKALAYIL, KULASEKHARAMANGALAM VILLAGE, VAIKOM TALUK KOTTAYAMN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29-10-2009 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * W.P. (C ) No. 30852 of 2009 * * * * * * * * * * * * * * * * * * Dated: 29th October, 2009 JUDGMENT The plaintiffs in O.S. No. 128 of 2008 on the file of the Munsiff's Court, Ettumanoor are the petitioners in this Writ Petition. The prayer in this Writ Petition is to declare Exts. P5 and P9 orders as illegal and to set aside the same, to allow Exts.P3 and P6 for re-opening the evidence of the first plaintiff and for a direction to permit the first plaintiff to adduce evidence. 2. The aforesaid suit is one for partition and separate possession of the plaintiffs share over 11 items of immovable properties including a residential building. The first petitioner is the first plaintiff who had two sons namely deceased Radhakrishnan Nair and the defendant Chandrasekharan Nair. The 2nd plaintiff is the widow of Radhakrishnan Nair and plaintiffs 3 and 4 are the son and daughter of the said Radhakrishnan Nair . The first plaintiff has crossed 85. According to her at a time when she was residing with the -:2:- W.P.C.30852 of 2009 defendant she had transferred her share over the suit properties including the house to her grandchildren namely defendants 3 and 4 . Infuriated by that, she was driven out of that house by the defendant and she claims to be residing with her daughter -in-law and children. The present suit was filed thereafter seeking partition and separate share of plaintiffs 1 to 4 over the 11 items of properties. 2. The suit was resisted by the sole defendant on various grounds including one that the suit properties if properly valued would take the suit beyond the pecuniary jurisdiction of the court below. All sorts of dilatory tactics were adopted by the defendant to prolong the disposal of the suit. As per Ext.P1 judgment dated 21-08-2009 of this Court in W.P. (C ) No. 21010/09, this Court, after hearing both sides, directed the Munsiff's Court to dispose of the suit within a time frame which will expire on 14-11-2009. 3. The proof affidavit of the first plaintiff was filed in Court and she was not cross-examined by the defendant. Two attestors to the sale deed executed by the first plaintiff were examined as P.Ws 1 and 2. Plaintiffs' evidence was closed and the case was posted for defence evidence. The defendant -:3:- W.P.C.30852 of 2009 adduced oral evidence by examining six witnesses all of whom were cross-examined on behalf of the plaintiffs. Thereafter the defendant filed Ext.P2 application directing the plaintiffs to produce the original of two documents which were alleged to be in the custody of the plaintiffs. The said petition is stated to have been entertained by the Court below which was not justified in doing so at that fag end of trial. The plaintiffs are alleged to have filed an affidavit stating that they are not in custody of those documents. Thereafter the plaintiff filed Ext.P3 application (I.A. 960/2009) seeking to re-open the plaintiffs' evidence so as to receive in evidence six documents mainly to show that the defendant had admitted that the first plaintiff was in possession of the suit properties. As per Ext.P5 order dated 27-9-2009 the trial court dismissed Ext.P3 petition. Thereafter the defendant filed Ext.P4 (I.A. 959 of 2009 for re-opening the defence evidence and to receive certain documents in evidence) . The said I.A., which deserved to be dismissed in limine, is stated to be pending. The plaintiffs, thereafter, filed Ext.P6 (I.A. 972 of 2009) seeking the examination of the first plaintiff on Commission. On the next day, that is, on 27-10-2009 the first plaintiff personally appeared before the Court below and offered -:4:- W.P.C.30852 of 2009 to examine himself by filing a memo. The learned Munsiff thereafter passed the impugned Ext.P9 order dated 28-10-2009 dismissing I.A. 972 of 2009 (Ext.P6) holding that the memo filed by the first plaintiff seeking her examination in Court was dismissed as not pressed. According to the plaintiffs the memo filed by the Ist plaintiff was suo motu advanced by the Court below to record that it was dismissed as not pressed. The petitioners/plaintiffs would have it that it was certain contentions raised by the defendant during evidence which necessitated the plaintiffs to file an application to examine the first plaintiff initially on commission and subsequently in Court and to receive in evidence additional documents. The petitioners would contend that the court below by dismissing the said application as per Ext.P9 order making certain observations on the merits has created a fear in the mind of the petitioners that the Court below is inclined to take a view in favour of the defendant. Hence, this Writ Petition. 4. In my view the above apprehension of the petitioners is baseless. This is a case in which after hearing both sides, this Court as per judgment dated, 21-08-2009 in W.P. (C ) No. 21010/09 directed the court below to dispose of the suit -:5:- W.P.C.30852 of 2009 within a time frame. Even before that the case stood listed for trial, both sides had sufficient opportunities to produce documents during the pre-trial steps. Admittedly, the defendant did not cross-examine the first plaintiff who had filed a proof affidavit. The evidence of both sides having been closed, the only course open to the Court was to post the case for final hearing and, accordingly, the case stands posted for final hearing on tomorrow i.e. the 30th day of October 2009. This Writ Petition is accordingly disposed of directing the Court below to dispose of the suit on the evidence already on record and untrammelled by any observations or findings on the merits made in the impugned order dated 28-10-2009. Dated this the 29th day of October 2009. Sd/- V. RAMKUMAR, (JUDGE) /true copy/ ani.