IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 8TH DECEMBER 2011 / 17TH AGRAHAYANA 1933 OP(C).No. 3929 of 2011(O) -------------------------------- OS.174/2008 of MUNSIFF COURT, THALASSERY .................... PETITIONER/DEFENDANT NO.1 ------------------------------------- MUHAMMED RIYAS, S/O. MAMMAD, SAINABAS, P.O. EDAKKAD, KANNUR DISTRICT. BY ADV. SRI.P.U.SHAILAJAN RESPONDENT(S): PLAINTIFF & DEFENDANTS 2 AND 3 --------------------------------------------------------------- 1. AMBALATHIL THAZHE KUNIYIL SHEENA, W/O.MANOHARAN, KAMALA BHAVAN, P.O. EDAKKAD, KANNUR DISTRICT - 670 663. 2. PUTHEN VEETIL DEVI, W/O. BALAN, PUTHEN VEETTIL HOUSE, P.O. EDAKKAD, KANNUR DISTRICT - 670 663. 3. CHATHAN KOTTATH HARIDASAN, S/O. KORAN, KADAMBUR AMSOM, DESOM, P.O. EDAKKAD, KANNUR DISTRICT - 670 663. R1 BY ADV. SRI.C.P.PEETHAMBARAN THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 08/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs O.P.(C). NO. 3929/2011 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE PLAINT IN O.S NO. 174/2008 BEFORE THE MUNSIFF COURT, THALASSERY P2: COPY OF THE WRITTEN STATEMENT FILED BY THE IST DEFENDANT IN O.S 174/2008 BEFORE THE MUNSIFF COURT, THALASSERY P3: COPY OF THE WITNESS LIST AND THE PETITION. P4: COPY OF THE I.A NO. 2769/2011 TO RE-OPEN THE EVIDENCE DATED 25/11/2011 P5: COPY OF THE PETITION TO RECEIVE THE WITNESS LIST. P6: COPY OF THE WITNESS LIST P7: COPY OF THE COUNTER IN I.A 2769/2011 P8: COPY OF THE HANDWRITTEN COPY OF THE COMMON ORDER IN I.A. 2769/2011 AND I.A NO. 2780/2011 RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A. TO JUDGE. svs THOMAS P. JOSEPH, J. ---------------------------------------- O.P(C).No.3929 of 2011 --------------------------------------- Dated this 08th day of December, 2011 JUDGMENT First defendant in O.S.No.174 of 2008 of the Court of learned Munsiff, Thalassery is the petitioner, challenging Ext.P8, common order refusing to reopen the case for evidence and permit petitioner examine two more witnesses on his side. 2. First respondent filed the suit for prohibitory and mandatory injunction claiming right of easement by prescription over the disputed way and seeking demolition of the compound wall. Evidence of the first respondent was over and thereafter petitioner adduced some evidence. While so, petitioner filed witness list for examination of two witnesses who, however refused to respond and give evidence. Thereon, petitioner filed application to reopen the case and for permission to examine two more witnesses. Those applications were posted on 29.11.2011 and dismissed by Ext.P8, common order. 3. It is submitted by learned counsel that petitioner wants to examine two more witnesses from the locality to speak about the claim of first respondent regarding easement by way of prescription. It is submitted by learned counsel that it was O.P(C).No.3929 of 2011 -: 2 :- because two witnesses cited earlier refused to give evidence that petitioner had to file new list of witnesses. Learned counsel submits that petitioner does not want to examine any witness other than two witnesses referred in the application filed on 25.11.2011. Learned counsel for first respondent submitted that sufficient opportunity was given to the petitioner to adduce evidence but no steps were taken to the witnesses earlier cited. 4. Having regard to the circumstances stated and in the nature of contentions raised I am inclined to think that an opportunity to the petitioner to adduce evidence shall not be shut out. Hence I am inclined to allow the applications. Resultantly this original petition is allowed. Ext.P8, order is set aside and I.A.Nos.2769 and 2780 of 2009 will stand allowed. Petitioners are permitted to examine the two witnesses cited in the said applications. The submission of learned counsel that petitioner does not want to examine any further witness is recorded. (THOMAS P. JOSEPH, JUDGE) Sbna/-