IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 4TH AUGUST 2011 / 13TH SRAVANA 1933 OP(C).No. 2545 of 2011(O) -------------------------------------- OS.484/2010 OF III ADDITIONAL SUB COURT, KOZHIKODE .................... PETITIONER: -------------------- 1. E. SASIDHARAN, AGED 63 YEARS, S/O. KITTAN, IMBRAKANDY, PUTHIYANGADY. P.O PUTHIYANGADI, KOZHIKODE. 2. A. SHYAMALA, AGED 58 YEARS, D/O.KITTAN, RESIDING AT ''SHYAMALA'', PAVANGADE, KOZHIKODE. 3. A. BAHULEYAN, AGED 55 YEARS, S/O. KITTAN, RESIDING AT ''REMANIKA'', PAVANGADE, KOZHIKODE. 4. E. SUNDARAN, AGED 53 YEARS, S/O. KITTAN, RESIDING AT ''DHANUSH'', PAVANGADE, KOZHIKODE. 5. M.K. PEETHAMBARAN, AGED 51 YEARS, S/O. KITTAN, THADATHILPARAMBU, PAVANGODE, EDAKKADU, KOZHIKODE. 6. M.K. JAYANTHKUMAR, AGED 49 YEARS, S/O. KITTAN, RESIDING AT ''PARVATHY'', PAVANGADE, KOZHIKODE. BY ADV. SRI.JESWIN P.VARGHESE RESPONDENT(S): --------------------------- 1. M.K. SUSEELA, AGED 83 YEARS, D/O. KUMARAN, IMBARAKANDY, PUTHIYANGADY. P.O, PUTHIYANGADI, KOZHIKODE-673 021. OP(C).No. 2545 of 2011(O) 2. PARTHAN @ BABU, AGED 43 YEARS, S/O. LATE GOPALAN, RESIDING AT ''MATHRUVYAM'', VIRUTHISSERY VAYAL, PUTHIYANGADY. P.O, PUTHIYANGADY, KOZHIKODE-673 021. 3. RAJEEVAN, AGED 41 YEARS, S/O. LATE GOPALAN, RESIDING AT ''MATHRUVYAM'', VIRUTHISSERY VAYAL, PUTHIYANGADI. P.O, PUTHIYANGADY, KOZHIKODE-673 021. 4. SUDHEER, AGED 39 YEARS S/O. LATE GOPALAN, RESIDING AT ''MATHRUVYAM'', VIRUTHISSERY VAYAL, PUTHIYANGADY .P.O, PUTHIYANGADY, KOZHIKODE-673 021. 5. SEENA, AGED 37 YEARS, D/O. LATE GOPALAN, RESIDING AT ''MATHRUVYAM'', VIRUTHISSERY VAYAL, PUTHIYANGADY .P.O, PUTHIYANGADY, KOZHIKODE-673 021. BY THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 04/08/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs OP(C).No. 2545 of 2011(O) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PLAINT IN O.S. NO.484/2010 ON THE FILES OF ADDL. SUB COURT III, KOZHIKODE DATED 29/06/2010. EXT.P2: COPY OF THE SCAN REPORT FROM DEPARTMENT OF RADIOLOGY MEDICAL COLLEGE HOSPITAL, KOZHIKODE DATED 16/05/2007. EXT.P3: COPY OF THE I.A. NO.177/2011 IN O.S. NO.484/2010 BEFORE ADDL. SUB COURT III, KOZHIKODE DATED 05/01/2011. EXT.P4: COPY OF THE COUNTER FILED BY THE RESPONDENTS IN I.A. NO.177/2011 IN O.S. NO.484/2010. EXT.P5: COPY OF THE ORDER OF ADDL. SUB COURT III, KOZHIKODE IN I.A. NO.177/2011 IN O.S. NO.484/2010 DATED 26/03/2011. RESPONDENT'S EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE rs THOMAS P.JOSEPH, J. ==================================== O.P(C) No.2545 of 2011 ==================================== Dated this the 04th day of August, 2011 J U D G M E N T Notice to the respondents is dispensed with in view of the decision I propose to take in this petition. 2. Petitioners are plaintiffs in O.S. No.484 of 2010 of the court of learned Additional Sub Judge-III, Kochi. That is a suit for partition where petitioners are challenging a Will. Claiming that one Swami, uncle of the parties and aged about 70 suffering from Cancer is a material witness to speak about genuineness of the Will, petitioner filed Ext.P3, application to examine the said witness under Order XVIII Rule 16 of the Code of Civil Procedure. That application was dismissed as per Ext.P5, order. That order is under challenge. Learned counsel submitted that considering the illness and oldness of the witness whose evidence is very relevant, court below ought to have allowed the request for early examination of the witness. 3. It is seen from the order under challenge that for the reason that defendants 4 and 5 have not appeared and no steps have been taken to summon them, learned Sub Judge observed that the application is premature. I am inclined to agree. O.P(C) No.2545 of 2011 -: 2 :- 4. May be, Order XVIII Rule 16 of the Code permits out of turn examination of the witness but that can be done only after the parties to the suit appeared or they are served, but they did not appear (as the case may be). In this case no steps have been taken to summon defendants 4 and 5. It is in that circumstance that learned Sub Judge observed and rightly, the application is premature. I do not find reason to interfere. But I make it clear that it is open to the petitioner to move fresh application after service on parties is over. Original Petition is closed as above. THOMAS P. JOSEPH, JUDGE. vsv