IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 24TH SEPTEMBER 2010 / 2ND ASWINA 1932 WP(C).No. 20446 of 2010(O) -------------------------- AGAINST THE ORDER DATED 16/06/2010 IN IA 1973/2010 & IA 1974/2010 IN OS.427/2005 of PRINCIPAL SUB COURT,KOLLAM .................... PETITIONER(S): --------------- 1. RADHA, AGED 50 YEARS, W/O. LATE RAJU, RESIDING AT SHUNMUGHA VILASOM, MANGAD P.O., KILIKOLLUR, KOLLAM. 2. KEERTHI, AGED 22 YEARS, D/O. LATE RAJU, RESIDING AT SHUNMUGHA VILASOM, MANGAD P.O., KILIKOLLUR, KOLLAM. 3. KARTHIK, AGED 21 YEARS, S/O. LATE RAJU, RESIDING AT SHUNMUGHA VILASOM, MANGAD P.O., KILIKOLLUR, KOLLAM. BY ADV. SRI.RAJA VIJAYARAGHAVAN SRI.R.RANJITH RESPONDENT(S): --------------- 1. RAHUL, AGED 19 YEARS, S/O. RAJU BANGLAVIL VEEDU, VELLIMON WEST P.O., PERINAD VILLAGE, KUNDARA, KOLLAM, FROM SHUNMUGHA VILASOM, MANGAD P.O., KILIKOLLUR, KOLLAM. 2. SURESH, AGED 55 YEARS, S/O. KESAVAN, RESIDING AT SHUNMUGHA VILASOM, MANGAD P.O., KILIKOLLUR, KOLLAM. 3. SHANTHA KUMARI, AGED 58 YEARS, D/O. KESAVAN, RESIDING AT KIZHAKKEVILA MEKKE VEEDU, MANGAND CHERRY, MANGAD P.O., KOLLAM. 4. GIRIJA YESODHARAN, W/O. YESODHARAN, RESIDING AT SHUNMUGHA VILASOM, MANGAD P.O., KILIKOLLUR, KOLLAM. WP(C) NO.20446/2010 2 5. SINDHU YESODHARAN, D/O. YESODHARAN, SHUNMUGHA VILASOM, MANGAD P.O., KILIKOLLUR, KOLLAM. 6. SANJITH YESODHARAN, S/O. YESODHARAN, RESIDING AT SHUNMUGHA VILASOM, MANGAD P.O., KILIKOLLUR, KOLLAM. ADV. SRI.VIJU THOMAS FOR R1 SMT.M.MEENA JOHN FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.20446/2010 APPENDIX PETITIONERS' EXHIBITS: EXT.P1 TRUE COPY OF THE PLAINT IN OS 427/.2005 ON THE FILE OF SUB COURT, KOLLAM DATED AUGUST, 2005 EXT.P2 TRUE COPY OF WRITTEN STATEMENT FILED BY DEFENDANTS 1 TO 3 IN OS 427/2005 DATED 8.11.2006 EXT.P3 TRUE COPY OF THE APPLICATION DATED 16.6.2010 FILED BY THE PETITIONER AS IA NO.1974/2010 ALONG WITH THE SCHEDULE OF WITNESSES EXT.P4 TRUE COPY OF APPLIATION DATED 16.6.21010 FILED BY THE FIRST PETITIONER AS IA NO.1973/2010 EXT.P5 AND P5(a) CERTIFIED COPY OF THE COMMON ORDER IN IA NO.1973/2010 AND 1974/2010 IN OS 427/2005 ON THE FILE OF THE SUB COURT, KOLLAM. //TRUE COPY// THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.20446 of 2010 -------------------------------------- Dated this the 24th day of September, 2010. JUDGMENT Respondent No.1 filed O.S.No.427 of 2005 in the court of learned Principal Sub Judge, Kollam for partition of the suit properties and separate possession of the 1/4th share he claimed, after setting aside Will No.6 of 1998 dated 22.10.1997. He claimed that he is born to the late Raju in Thulasi Bai with whom the said Raju had a marriage agreement. It is his further claim that said Raju died intestate and hence he is entitled to get equal share with petitioners herein (defendant Nos.1 to 3). Petitioners resisted the suit on the strength of a Will (allegedly) executed by the said Raju on 22.10.1997 and deposited with the District Registrar in a sealed cover which was opened after death of the said Raju and registered as document No.6 of 1998. After framing issues the case was posted for pre-trial steps on 15.01.2010. The case was then listed for trial on 01.07.2010. According to the petitioners, petitioner No.1 was at Calicut and her mother met with an accident, suffered a fracture and hence petitioners were not able to take necessary steps within the permitted time. On 16.06.2010 petitioners filed Exts.P3 and P4, applications - I.A.Nos.1973 of 2010 and 1974 of 2010 requesting the learned Sub Judge to issue summons to the District Registrar to produce the original Will No.6 of 1998, summon the scribe and attesting witnesses for their examination and WP(C) No.20446/2010 2 receive copy of judgment in O.S.No.95 of 2005 in evidence. Learned Sub Judge passed Exts.P5 and P5(a), orders on the said applications, both in the following lines: “Highly belated. Hence dismissed.” Those orders are under challenge in this petition. Learned counsel for petitioners has urged that production of the original Will, receipt of copy of judgment and examination of witnesses as requested for in Exts.P3 and P4, applications are necessary to prove the case set up by petitioners and that learned Sub Judge was not correct in dismissing those applications without application of mind for the mere reason that there was some delay in filing the applications. 2. In the nature of contentions that petitioners and respondent No.1 have raised and since petitioners have a case that the late Raju had executed Will No.6 of 1998 as claimed by them, burden was on petitioners to prove due execution and attestation of the Will as provided under law. It is for the said purpose that they filed Ext.P3 and P4, applications though a bit belatedly but almost two weeks before the date (01.07.2010) fixed for trial of the case. I am not persuaded to think that Exts.P3 and P4, applications are so belated that one could presume contumacious delay on the part of petitioners or an attempt to protract the litigation. Learned Sub Judge failed to consider these aspects and instead dismissed the application by a cryptic order. I do not find reason to WP(C) No.20446/2010 3 disallow the applications. If the learned Sub Judge leaving aside technicalities, had allowed the applications the final and disposal of the case itself would probably have been over now. Dismissal of the applications has only resulted in the matter being delayed. Petitioners should get the opportunity to adduce evidence. Resultantly this petition is allowed. Exts.P5 and P5(a), orders are set aside. Exts.P3 and P4, applications will stand allowed. Learned Sub Judge is directed to issue summons as prayed for in the said applications. It is apposite to remember the observations made by the Supreme Court (though in a matter relating to condonation of delay) in Collector, Land Acquisition, Anantnag v. Katiji (AIR 1987 SC 1353): “............. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.” THOMAS P.JOSEPH, Judge. cks