IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.CHITAMBARESH THURSDAY, THE 24TH NOVEMBER 2011 / 3RD AGRAHAYANA 1933 WP(C).No. 22024 of 2007(V) -------------------------- AGAINST THE ORDER IN IA 2130 2007 IN OS.401/1999 of PRINCIPAL SUB COURT,PARAVUR .................... PETITIONER(S): --------------- PINKU H.THALIATH @ PINKU URUMESE, D/O.T.L.HORMIS @ URUMESE, THALIATH HOUSE, POWER HOUSE EXTENSION ROAD, COCHIN-18. BY ADV. PINKU H.THALIATH (PARTY-IN-PERSON) RESPONDENT(S): --------------- 1. CHACKO JOSEPH, S/O.KALLARACKAL JOSEPH, MANNAMTHURUTHU MURIYIL, VARAPUZHA VILLAGE, PARAVUR TALUK. 2. CHACKOCHAN, S/O.VITHAYATHIL JOSEPH, VARAPUZHA VILLAGE, PARAVUR TALUK. 3. K.P.VARGHESE, S/O.KALLUNKAL PYLEE, KOMBANIYIL, VEENAVAZHIKARAYIL, KOTHAMANGALAM TALUK. 4. RANI JOY, VALIPLACKAL HOUSE, KOORALI P.O., ELAMKULAM, PONKUNNAM. 5. JOHNNY URUMESE, THALIATH HOUSE, NEAR BHARANANGANAM CHURCH, BHARANANGANAM, PALA. * 6. THOMAS URUMESE, THALIATH HOUSE, NEAR BHARANANGANAM CHURCH, BHARANANGANAM, PALA. (R6 DELETED AS PER ORDER DATED 5.9.2008 IN I.A.NO.11632/2008) * 7. BABU URUMESE, THALIATH HOUSE, NEAR BHARANANGANAM CHURCH, BHARANANGANAM, PALA. (R7 DELETED AS PER ORDER DATED 24.11.2011) W.P.(C) No.22024 of 2007 : 2 : 8. BIBI URUMESE, THALIATH HOUSE, AMBELIPADAM ROAD, POONITHURA, VYTTILLA P.O. 9. ANJU URUMESE, THALIATH HOUSE AMBELIPADAM ROAD, POONITHURA, VYTILLA P.O. 10. HORMIS LONA THALIATH, THALIATH HOUSE, POWER HOUSE EXTENSION ROAD, COCHIN - 18. BY ADV. SMT.C.G.PREETHA FOR R.8,10 BY ADV. SRI.K.JAYAKUMAR FOR R4 BY ADV. SRI.P.B.KRISHNAN FOR R4 BY ADV. SRI.MOHAN PULIKKAL FOR R1 TO 3 BY ADV. SMT.MANJU RAJAN FOR R1 TO 3 BY ADV. SMT.C.G.PREETHA FOR R9 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.(C) No.22024 of 2007 EXT.P1 TRUE COPY OF THE SUIT DOCUMENT DATED 10.5.1999 RELIED UPON BY THE PLAINTIFFS. EXT.P2 TRUE COPY OF THE SALE CONTRACT DATED 5.11.1999 EXECUTED BY THE PLAINTIFFS IN FAVOUR OF MR.PRADEEP. //true copy// P.S. To Judge. V.CHITAMBARESH, J. ------------------------------- W.P.(C) No.22024 of 2007 ------------------------------- Dated this the 24th day of November, 2011 J U D G M E N T The 7th defendant in a suit for specific performance of an agreement for sale is the writ petitioner. She has inter alia contended in her written statement that the suit agreement is vitiated by fraud, in as much as, the extent of the property included in its schedule has subsequently been altered. The 7th defendant therefore filed an application to forward this document for examination by an expert. That application has been dismissed by Ext.P3 order which is challenged by her in this writ petition under Article 227 of the Constitution of India. 2. The relief of specific performance is discretionary as evident by Section 20 of the Specific Relief Act, 1963. It is brought to my notice that a specific issue has been raised by the court below as to whether the suit agreement is vitiated by fraud. It will be in the fitness of things, if this suit agreement is forwarded to a handwriting expert, under these circumstances. A total non-application of mind by the court below is well evident by a mere reading of Ext.P3 order. There is no consideration on W.P.(C) No.22024 of 2007 2 merits of the relevant plea raised by the parties in the suit. 3. Ext.P3 order is hence set aside and the court below is directed to forward the suit agreement to a handwriting expert as expeditiously as possible. 4. Transmit the records to the lower court forthwith. The writ petition is disposed of as above. V.CHITAMBARESH, Judge. nj. V.CHITAMBARESH, J. -------------------------------------- W.P.(C) No. 22024 of 2007 JUDGMENT Dated:- 24th November, 2011 --------------------------------------