IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 27TH JULY 2011 / 5TH SRAVANA 1933 OP(C).No. 1894 of 2011(O) ------------------------------------ [OS.NO.1355/2010 OF I ADDITIONAL SUB COURT,TRIVANDRUM] .................... PETITIONER: ------------------- AGNEZ FERNANDEZ,AGED 79 YEARS, W/O.LATE MELVIL L.FERNANDEZ,RESIDING AT T.C.30/1882, PETTAH.P.O,THIRUVANANTHAPURAM. BY ADV. SRI.PRAVEEN VYASAN. RESPONDENTS: ------------------------ 1. CEDRIC FERNANDEZ,S/O.LATE MELVIL.L.FERNANDEZ, RESIDING AG 'GREBAM',T.C.13/1038, CHATTAMBY SWAMY NAGAR,KANNANMOOLA, MEDICAL COLLEGE.P.O,THIRUVANANTHAPURAM-695 011. 2. ROLLIN FERNANDEZ,S/O.LATE MELVIL.L.FERNANDEZ, RESIDING AT 'REVATHY',T.C.11/7891, KOWDIAR.P.O,THIRUVANANTHAPURAM-695 003. R1 & R2 BY ADVS. SRI.RAM MOHAN.G, SRI.G.P.SHINOD, SRI.MANU V. THIS O.P (CIVIL) HAVING COME UP FOR ADMISSION ON 27/07/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.(C).NO.1894/2011-O: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE PLAINT IN O.S. NO. 1355/2010 ON THE FILE OF THE 1ST ADDITIONAL SUB COURT, THIRUVANANTHAPURAM. EXT.P.2: COPY OF THE SETTLEMENT DEED BY WHICH THE RESIDENTIAL PROPERTY OF THE PARTIES HEREIN WAS CAUSED TO BE SETTLED IN THE NAME OF THE RESPONDENTS. EXT.P.3: COPY OF THE I.A. NO. 742/2011 IN O.S. NO. 1355/2010 ON THE FILE OF THE 1ST ADDITIONAL SUB COURT, THIRUVANANTHAPURAM. EXT.P.4: COPY OF THE OBJECTION FILED BY THE RESPONDENTS TO EXT.P.3. EXT.P.5: COPY OF THE MEDICAL CERTIFICATE ISSUED TO THE PETITIONER. EXT.P.6: COPY OF THE ORDER IN I.A. NO. 742/2011 IN O.S. NO.1355/2010. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.1894 of 2011 -------------------------------------- Dated this the 27th day of July, 2011. JUDGMENT Respondents appear through counsel. 2. Prayer in this petition is for an out of turn examination of petitioner/first plaintiff as a witness, invoking Rule 16 of Order 18 of the Code of Civil Procedure (for short, “the Code”). 3. The matter arises from O.S.No.1355 of 2010 of the court of learned First Additional Sub Judge, Thiruvananthapuram filed by the petitioner and others for setting aside certain documents, declaration and for partition. Petitioner/first plaintiff is aged about 80 years and stating that apart from oldness she is suffering from various illness and suffered three heart attacks, she filed I.A.No.742 of 2011 (Ext.P3) to examine her as provided under Rule 16 of Order 18 of the Code. That application was dismissed by the learned Additional Sub Judge as per Ext.P6, order dated April 5, 2011 stating various reasons including pendency of large number of older cases, that no medical certificate is produced to prove the alleged illness of the petitioner and that affidavit in support of the application is sworn to by the second plaintiff, daughter of petitioner. The said order is under challenge. Learned counsel has contended that two medical certificates were produced on the day Ext.P3, application was taken up for hearing in the court below but, those certificates were not taken into account by OP(C) No.1894/2011 2 the learned Additional Sub Judge. It is also contended that if at all affidavit of petitioner was required, learned Additional Sub Judge could have given petitioner an opportunity to cure that defect. It is pointed out that petitioner is aged 80 years and has suffered heart attacks. Learned counsel for respondents contend that I.A.No.742 of 2011 suffered from the defects above stated, defects were not cured and that according to the respondents, it is the second plaintiff, daughter of the petitioner/first plaintiff who is behind the whole show and she has sworn the affidavit in support of I.A.No.742 of 2011. 4. The mere fact that affidavit was sworn to by the second plaintiff, daughter of the petitioner/first plaintiff and, there was no separate affidavit filed by the petitioner need not have resulted in the dismissal of I.A.No.742 of 2011. That affidavit was sworn on behalf of petitioner. What learned Additional Sub Judge ought to have considered was whether circumstances necessitated examination of petitioner, out of turn as provided under Rule 16 of Order 18 of the Code. Under the said provision where a witness is about to leave the jurisdiction of the court or other sufficient cause is shown to the satisfaction of the court why his evidence should be taken immediately the court may upon the application of any party or of the witness at any time after the institution of the suit take the evidence of such witness in the manner provided in the said provision. Admittedly respondents have filed their written statement. It is seen from Ext.P5, photocopy of medical certificate (which learned counsel submits, OP(C) No.1894/2011 3 was produced before the trial court on the day I.A.No.742 of 2011 was taken up for hearing) that petitioner is undergoing treatment for ishemic heart diseases, old myocardial infraction, systemic hypertension, dislipidemia and diabetes mellitus. The Medical Officer who issued the certificate has advised that petitioner required restriction of activities special diet and continuous medication for her heart diseases and diabetes. 5. True, the medical certificate did not catch the attention of learned Additional Sub Judge probably because by the time I.A.No.742 of 2011 was taken up for hearing it had not reached learned Additional Sub Judge. It is submitted that the medical certificate was filed on the morning of the relevant day and a submission to that effect was made before learned Sub Judge. 6. Having regard to the circumstances, I am inclined to think that this matter need not go back to the learned Additional Sub Judge for a decision. Since the materials are produced, I am inclined to act upon the same. 7. It is seen that petitioner is aged 80 and suffering from heart disease which required restriction of activities, special diet and continuous medications. In such a circumstance it is only appropriate that evidence of petitioner which according to the petitioner is relevant for decision in the suit is taken immediately. I am therefore inclined to allow the request. Resultantly this Original Petition is allowed. Ext.P6, order dated April 5, 2011 dismissing I.A.No.742 of 2011 (in O.S.No.1355 of 2010 of the court OP(C) No.1894/2011 4 of learned First Additional Sub Judge, Thiruvananthapuram) is set aside and that application is allowed. Learned First Additional Sub Judge is directed to record the evidence of petitioner as provided under Rule 16 of Order 18 of the Code on a day convenient to both the parties. THOMAS P.JOSEPH, Judge. cks