IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 24TH JUNE 2011 / 3RD ASHADHA 1933 OP(C).No. 2003 of 2011(O) AGAINST THE ORDER DATED 18/06/2011 IN IA 3540/2011 IN OS.434/2007 OF I ADDL.SUB COURT,ERNAKULAM PETITIONER ------------------ DR.A.DIVAKAR PRABHU,AGED 62 YEARS, S/O.LATE S.ACHUTHA PRABHU,DWARAKA,59/4242, CHITTOOR ROAD,KOCHI-19. BY ADV. SRI.S.SACHITHANANDA PAI RESPONDENTS: --------------- 1. MRS.BASANT R RAO,W/O.LATE RAMANAND RAO, NO.3,KUALASHREE,PUSHPAVIHAR COLONY, THRISSUR-680751. 2. MR.NAVIN A.PRABHU,S/O.LATE S.ACHUTHA PRABHU, NALANDA,NORTH CHERLAI,KOCHI-2. 3. DR.NALINAKSH A.PRABHU,S/O.LATE ACHUTHA PRABHU, NALINAM,NORTH CHERLAI,KOCHI-2. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 24/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE PETITION IN I.A.NO.3074 OF 2011 IN O.S.NO.434 OF 2007. EXT.P2 TRUE COPY OF THE ORDER DATED 10.6.2011 IN I.A.NO.3074 OF 2011. EXT.P3 COPY OF THE PETITION IN I.A.NO.3540 OF 2011. EXT.P4 COPY OF THE OBJECTION IN I.A.NO.3540/2011 IN O.S.NO.434 OF 2007. EXT.P5 COPY OF THE ORDER DATED 18.6.2011 IN I.A.NO.3540 OF 2011. RESPONDENTS' EXHIBITS: NIL //TRUE COPY// AHZ/ K.T.SANKARAN, J. ------------------------------------------------------ O.P.(C). NO. 2003 OF 2011 O ------------------------------------------------------ Dated this the 24th day of June, 2011 JUDGMENT The petitioner is the plaintiff in O.S.No.434 of 2007 on the file of the I Additional Sub Court, Ernakulam. The suit was listed for trial. Evidence was adduced by both parties. Evidence was closed. Arguments were over and the court reserved judgment. 2. Before taking the case for judgment, the defendants had filed an application (I.A.No.3074 of 2011) to reopen the evidence. They stated that the facts stated in the additional written statement were omitted to be incorporated in the proof affidavit filed on their behalf. The court below allowed that application by the order dated 10.6.2011. The plaintiff filed I.A.No.3540 of 2011 to review that order. The plaintiff contended that he was not afforded an opportunity to file a counter in I.A.No.3074 of 2011. The learned Subordinate Judge, by the order dated 18.6.2011, dismissed I.A.No.3540 of 2011, which is under challenge in this Original Petition. O.P.(C) NO.2003 OF 2011 :: 2 :: 3. The learned Subordinate Judge held that in spite of the specific pleadings, the defendants omitted to include those facts in the proof affidavit. On 26.5.2011, they filed an application to reopen the evidence. Without noticing the pendency of that application, the court below took the case for judgment and posted the case to 10.6.2011 for judgment. The pendency of the application was brought to the notice of the Court and there upon the Court allowed the application. It was also held by the learned subordinate Judge that even at the time when the application for review was being considered, no counter was filed in I.A.No.3074 of 2011. 4. The Court only granted an opportunity to the defendants, by reopening the evidence, to include the necessary averments which were omitted to be included in the proof affidavit. An omission was sought to be corrected by the Court. The plaintiff would not be prejudiced by the order passed by the court below, since they will get an opportunity to cross examine the witness in whose proof affidavit additions have been made. The Court exercised the discretion to reopen the case only for the purpose of O.P.(C) NO.2003 OF 2011 :: 3 :: enabling it to adjudicate upon all the disputes involved in the case. Such an act cannot be characterised as illegal or without jurisdiction. There is no jurisdictional error warranting interference under Article 227 of the Constitution of India. The Original Petition is accordingly dismissed. (K.T.SANKARAN) Judge ahz/