IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 10TH JULY 2008 / 19TH ASHADHA 1930 FAO.No. 160 of 2007() --------------------- AS.44/2006 of SUB COURT, TIRUR OS.81/2003 of MUNSIFF'S COURT,PARAPPANANGADI .................... APPELLANT/APPELLANT BEFORE THE LAC/PLAINTIFF BEFORE THE TC ------------------------------------------------------------------------------------------------------- KIZHAKKINIYAKATH THITHACHUTTY UMMA, W/O.LATE THOMMIL PADINJARE NALAKATH ABOOBAKER KUTTY, THEKKEPPAT,PARAPANANGADI AMSOM AND DESOM,TIRUR ANGADI TALUK,MALAPURRAM,DISTRICT. BY ADV. SRI.M.P.SREEKRISHNAN SMT.SHAHNA KARTHIKEYAN SRI.VISWANATH RESPONDENTS: RESPONDENTS BEFORE THE LAC AND DEFENDANTS ------------------------------------------------------ 1. NELLATTU THODIKA UMMAYUMMA,D/O. KUNHAMMADKUTTY, AGED 58 YEARS,IYYATHU MANZIL, VALIYORA POST,VENGARA,MALAPURAM DISTRICT. 2. KIZHAKKINIYAKATH HAMZA NAHA AGED 46 YEARS,S/O.T.P.ABOOBACKERKUTTY, PARAPPANANGADI AMSOM,DESOM, TIRURANGADI TALUK. 3. KIZHAKKINIYAKATH SIDHIQUE AGED 40 YEARS S/O.T.P.ABOOBACKERKUTTY,PARAPPANANGADI AMSOM,DESOM, TIRURANGADI TALUK. * 4. KIZHKKINIYAKATH IMBIBI AGED 43 YEARS, (THEKKAPPAT)D/O.T.P.ABOOBACKERKUTTY, PARAPPANANGADI AMSOM,DESOM, THIRURANGADI TALUK (INSANE). 5. KONGANTEPURAKKAL ALI. S/O.KOYATHEENKUTTY, AGED ABOUT 45 YEARS,PARAPPANANGADI AMSOM,DESOM, TIRURANGADI TALUK. 6. MECHERI NAJEEB,S/O.ADBULKHADER,AGED 29 YEARS, PARAPPANANGADI AMSOM,DESOM,TIRURANGADI TALUK F.A.O. NO.160/2007 7. BUSHARA NAJEEB,W/O.MECHERI NAJEEB, AGED 26 YEARS,PARAPPANANGADI AMSOM,DESOM, TIRURANGADI TALUK. 8. PATTARUKADAVAN SAFIYA,D/O.KOMUKUTTY, AGED33 YEARS,KATTILETHODI PARAMBU, PARAPPANANGADI AMSOM,DESOM, TIRURANGADI TALUK. * THE APPELLANT- MRS.KIZHAKKINIYAKATH THITHACHUTTY UMMA IS APPOINTED AS THE GUARDIAN OF 4TH RESPONDENT-KIZHAKKINIYAKATH IMBIBI, VIDE ORDER DATED 10/12/2007 ON I.A. NO.4575/2007. BY ADV. SRI.K.P.SUDHEER - R.1 SRI.SANTHEEP ANKARATH - R5,7,8 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 10/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON I.A. NO.2018/2007 IN FAO. NO.160/2007. DISMISSED 10/07/2008. SD/- M.N.KRISHNAN, JUDGE // TRUE COPY // Rs/ M.N.KRISHNAN, J. -------------------------- F.A.O. No. 160 OF 2007 --------------------- Dated this the 10th day of July, 2008 JUDGMENT This appeal is preferred against the order of remand passed by the Subordinate Judge, Tirur, in AS 44/06. There is a plaint as well as counter claim and there was a direction by this court for a time bound disposal of the matter. Evidence was let in and at the time of the argument nobody was present for hearing on the side of the plaintiff. Therefore, the suit was dismissed for default with cost and the counter claim was allowed and a preliminary decree for partition was also passed. It is against that decision an appeal was preferred. 2. Before the appellate court both sides agreed for decree and judgment on merit and requested for a remand, further with a direction for a time bound disposal. The appellate court therefore set aside the decree and judgment passed by the court below and remanded the matter for the limited purpose of hearing and passing considered judgment and decree on merits. A considered judgment and decree on merits can be passed only when there is a written FAO No.160/07 2 statement to the counter claim, issues are framed, evidence is let in and a finding is given on that issue. The court cannot grant judgment on merit even without a written statement. An oral submission without a written statement is not generally entertained in civil cases. Therefore without going much into the details, I feel the order of remand can be clarified and extended so as to permit both parties to have a real decision on merits. So, for the said purpose, the case is remanded back to the court below permitting the parties to do the following: (i) The plaintiff in the suit is permitted to file a written statement to the counter claim filed by the defendants and it can be received by the court. The said statement shall be filed on or before 30.7.08. (ii) The court shall give 10 days time for taking steps and production of documents and if any replication is necessary, for the said purpose, time shall be granted within this 10 days. (iii) The court shall, if necessary, permit the parties to adduce evidence within a time frame of two weeks commencing from 16th August, 2008. The suit shall be disposed of on or before 16.9.08. FAO No.160/07 3 This judgment is passed only to enable the court to pass a considered judgment on merits and on the pleadings of the parties. Otherwise it will not amount to a disposal on merits. It is made clear that the plaintiff in the suit shall not again come to this court with some time extension application or for further clarification. On the non-compliance of the above direction, the court is at liberty to proceed with the case and dispose of the matter as ordered by the appellate court. The other terms and conditions of the appellate judgment will continue. M.N.KRISHNAN, JUDGE vps FAO No.160/07 4