IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 27TH OCTOBER 2009 / 5TH KARTHIKA 1931 WP(C).No. 30120 of 2009(O) -------------------------- OS.42/2008 of SUB COURT, HOSDRUG .................... PETITIONERS: --------------- 1. MAMBRATHARAYAL SHAJI, AGED 41 YEARS, S/O.DIVAKARAN, RESIDING AT WEST ELERI VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT. 2. THEKUNSERIYIL MOHANAN, AGED 53 YEARS, S/O.KUTTAPPAN, RESIDING AT KOORANKUNDU, BUSINESS, PARAPPA VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT. BY ADV. MR.SURESH KUMAR KODOTH RESPONDENT: --------------- PANCHIKARAN VEETTIL AMBUNHI, RESIDING AT CHEERKAYAM, WEST ELERI VILLAGE, NATTAKKALLU POST, HOSDURG TALUK, KASARAGOD DISTRICT. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.30120 of 2009 - O --------------------------------- Dated this the 27th day of October, 2009 J U D G M E N T Writ petition is filed seeking the following reliefs: “i) To set aside Exhibit P5 order dated 6.10.2009 in I.A.No.1070 of 2009 declaring it be illegal and without jurisdiction. ii) To issue a direction to the Subordinate Judges Court, Hosdurg to allow Exhibit P4 application.” 2. Petitioners are the plaintiffs in O.S.No.42 of 2008. Suit is one for recovery of money based on an agreement. Parties entered into an agreement for slaughtering, cutting and removal of rubber trees from the property of the defendant. Under the agreement plaintiffs had advanced some amount to the defendant, but, the work contemplated could not be carried out, according to the plaintiffs, for reasons beyond their control, within the period stipulated. Seeking recovery of money paid to the defendant the suit was laid; and, the reliefs claimed thereunder was challenged and disputed by the defendant by filing written statement. Admittedly, the evidence of the parties W.P.(C).No.30120 of 2009 - O 2 have been completed and now the case stands posted for hearing. Before completion of the evidence plaintiffs had moved an application to mark newspapers of some national dailies which had been produced earlier, but, not marked in evidence by recalling and further examining the first plaintiff who had already been examined as PW1 in the case. That application was objected to by the defendant. The learned Sub Judge after hearing both sides dismissed the application of the plaintiffs vide Ext.P5 order. Propriety and correctness of Ext.P5 order is challenged in this writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 3. I heard the 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 it is dispensed with. 4. Perusing Ext.P5 order, it is seen, the learned Sub Judge has observed that petitioners can prove the point which is sought to be established by marking and exhibiting newspaper W.P.(C).No.30120 of 2009 - O 3 reports by examining one or two witnesses from the locality. Admittedly, petitioners wanted to substantiate their case that there was heavy down pour of rain during the relevant period covered by the agreement which prevented them from performing their part of the contract. To prove that aspect petitioners/plaintiffs wanted to get some newspapers of national dailies got exhibited in evidence after recalling the first plaintiff who had been examined as PW1. I do not find any impropriety in the conclusion formed by the court below that marking of the newspaper reports, even if permitted, would not advance the case of the plaintiffs in any manner and so much so, the request on that ground cannot be entertained. However, it is seen, after observing, the plaintiffs can prove their case canvassed by examining one or two witnesses from the locality, no opportunity had been extended to examine such witnesses. It is submitted, the case now stands posted for final argument. I direct the court below to provide an opportunity to the plaintiffs to examine one or two witnesses from the locality as observed in Ext.P5 order, if steps are taken for such purpose within ten days from the date of W.P.(C).No.30120 of 2009 - O 4 this judgment. The learned counsel for petitioners also sought permission to cause production of relevant certificates or documents from the Meteorological Department showing the quantity of rain fall during the relevant period. Reception of such evidence, if produced, shall be considered by the court below taking note of the disputed questions involved for adjudication and as contemplated by law. Subject to the observations, writ petition is disposed. Hand over a copy of this judgment to the counsel for the petitioner on usual terms and send a copy to the court below forthwith. S.S.SATHEESACHANDRAN, JUDGE. bkn/-