IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 19TH MAY 2010 / 29TH VAISAKHA 1932 WP(C).No. 6336 of 2010(O) ------------------------- OS.936/2008 of I ADDL.SUB COURT,ERNAKULAM .................... PETITIONER(S): --------------- N.R.RAGHAVAN NAMBIAR NRI, AGED 53 YEARS,S/O.V.RADHAKRISHNAN NAMBIAR RESIDING AT B.P.4715, RWANDA,FOAM HOUSE, MUHIMA, KIGALI, RWANDA,REPRESENTED BY HIS AUTHORISED AGENT AND POWER OF ATTORNEY HOLDER MR.P.R.KRISHNAN NAMBIAR,AGED 57 YEARS, SON OF R.RAMAN NAMBIAR, RESIDING AT 87 KUMARANASAN NAGAR, KADAVANTHRA, COCHIN 682020, ERNAKULAM DISTRICT. BY ADV. SRI.SREELAL N.WARRIER SRI.B.RAGHUNANDANAN RESPONDENT(S): --------------- MR.K.VINOD KUMAR, AGED 51 YEARS S/O.V.C.NAIR, RESIDING AT SUSAILAM,VRINDAVAN COLONY, KADAVANTHRA,POONITHURA VILLAGE KANAYANNUR TALUK,COCHIN 682 020. ADV. SRI.JOSEPH GEORGE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.6336/2010 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE PHOTOCOPY OF PLAINT IN OS NO.936/2008 OF THE COURT I ADDL. SUBORDINATE JUDGE, ERNAKULAM EXT.P2 TRUE PHOTOCOPY OF WRITTEN STATEMENT IN OS NO.936/2008 OF -DO- -DO- EXT.P3 TRUE PHOTCOPY OF I.A. IN OS 936/2008 OF -DO- -DO- //TRUE COPY// THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.6336 of 2010 -------------------------------------- Dated this the 19th day of May, 2010. JUDGMENT Petitioner seeks a direction to the learned Additional Sub Judge-I, Ernakulam to allow Ext.P3, application and to issue such other orders. He is the defendant in O.S.No.936 of 2008 of the court of learned Additional Sub Judge-I, Ernakulam filed by the respondent for realisation of money on the strength of alleged borrowel of Rs.15 lakhs on 23.05.2008 on executing a demand promissory note dated 23.05.2008. Petitioner contended in paragraph No.7 of his written statement that during the month of May, 2008 he was out of India. He denied the alleged transaction and execution of demand promissory note. Case was posted for trial in the list on 01.03.2010. While so, since petitioner and his power of attorney holder were abroad his counsel filed Ext.P3, application supported by the affidavit of counsel to summon certain records from the Immigration Department which according to the petitioner would show that he was out side India during May, 2008. Along with that application, there was an application to advance hearing of Ext.P3 which was disposed of on 17.02.2010. But, according to the petitioner, Ext.P3, application has not so far been disposed of. Learned counsel for petitioner would contend that objection to Ext.P3 that the affidavit in support of that application is not sworn by the petitioner or his power of attorney holder is too technical and not sustainable in view of the provisions of Order 3 Rule 1 and Order 16 Rules 1, 2 and 6 of the WP(C) No.6336/2010 2 Code of Civil Procedure (for short, “the Code”). According to learned counsel, affidavit could be sworn by the person conversant with the facts sworn. It is the contention of learned counsel that the fact that the records sought to be summoned from the Immigration Department if produced would prove the contention of petitioner that he was abroad during May, 2008 is a fact which is known to the counsel for petitioner from the pleading of the petitioner and hence, the affidavit of counsel is sufficient. 2. In so far as, as learned counsel also submitted, Ext.P3, application has not been disposed of by the learned Additional Sub Judge-I, it is not necessary for me to go into the question whether affidavit of counsel is sufficient to support Ext.P3, application. That is a matter which the learned Additional Sub Judge has to consider while deciding Ext.P3, application. I direct the learned Additional Sub Judge-I, Ernakulam if Ext.P3 has not already been disposed of, to dispose of the same before the case is included in the list for trial. It is open to the petitioner to advance all his contentions before the learned Additional Sub Judge-I while hearing Ext.P3, application. Writ Petition is disposed of in the above lines. THOMAS P.JOSEPH, Judge. cks