IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 8TH OCTOBER 2009 / 16TH ASWINA 1931 WP(C).No. 29655 of 2008(E) -------------------------- OS.28/2008 of MUNSIFF COURT, PAYYANNUR .................... PETITIONER(S): ------------------------ CHERALAN PUTHIYA VEETTIL SANTHAKUMARI, D/O.CHINDAN, RESIDING AT PERINGOME AMSOM DESOM, P.O.PERINGOME, KANNUR DISTRICT. BY ADV. MR.M.V.AMARESAN RESPONDENT(S): --------------------------- CHERALAN PUTHIYA VEETTIL RAMACHANDRAN, S/O.CHINDAN, RESIDING AT PERINGOME AMSOM DESOM, P.O.PERINGOME, KANNUR DISTRICT. BY ADV. MR.MAHESH V RAMAKRISHNAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.29655/2008 E APPENDIX PETITIONER'S EXHIBITS: P1: WRITTEN COPY OF THE WILL HANDED OVER TO THE PETITIONER, REG. NO.44/1997 OF SRO, PERINGOME. P2: COPY OF THE PLAINT IN O.S.NO.28/2008 DTD. 14/01/08. P3: COPY OF WRITTEN STATEMENT FILED BY THE RESPONDENT DTD. 19/03/08. P4: COPY OF DOCUMENT NO.89/08 OF SRO, PERINGOME DTD. 9/01/2008. P5: COPY OF THE AFFIDAVIT FILED IN SUPPORT OF I.A.228/08 FILED BY THE PETITIONER DTD. 29/01/2008. P6: COPY OF COUNTER FILED BY THE RESPONDENT DTD. 19/03/2008. P7: COPY OF PETITION FILED BY THE RESPONDENT DTD. 19/03/2008. P8: COPY OF ORDER IN I.A.NO.228/08 DTD. 24/03/08 PASSED BY THE COURT OF THE MUNSIFF OF PAYYANNUR. P9: COPY OF THE AFFIDAVIT FILED IN SUPPORT OF I.A.478/08 FILED BY THE PETITIONER DTD. 14/03/08. P10: COPY OF COUNTER STATEMENT FILED BY THE RESPONDENT DTD. NIL. P11: COPY OF ORDER DTD. 16/06/08 IN I.A.478/08 IN O.S.28/08 PASSED BY THE COURT OF THE MUNSIFF, PAYYANNUR. RESPONDENT'S EXHIBITS: R1(A): COPY OF THE PLAINT SERVED ON THIHS RESPONDENT BY THE COURT BELOW. /TRUE COPY/ P.A.TO JUDGE Kss S.S.SATHEESACHANDRAN, J. ----------------------------- W.P.(C).No.29655 OF 2008 -------------------------- Dated this the 08th day of October 2009 ------------------------------------- JUDGMENT The writ petition is filed seeking the following reliefs. i) To set aside Ext.P8 and Ext.P11. ii) To allow Ext.P5 and Ext.P9. 2 Petitioner is the plaintiff in O.S No.28 of 2008 on the file of the Munsiff Court, Payyannur. Suit has been filed seeking a decree of permanent prohibitory injunction, and the respondent is the defendant. Respondent is the brother of the petitioner. Three maternal aunts of the parties executed Ext.P1 testament bequeathing the rights over their properties in favour of the petitioner. That testament was executed in 1997. Suit was laid by the petitioner after death of one of the maternal aunts for the relief of permanent prohibitory injunction against her brother, the W.P.(C).No.29655 OF 2008 Page numbers defendant, alleging that exerting undue influence he is making malafide attempts to compel the remaining two maternal aunts to create documents in his favour. The mental and physical capacity of the two maternal aunts were also assailed by the petitioner contending that they are incapable of taking decisions of their own. In the written statement filed by the defendant execution of a sale deed in his favour by the two aunts was set forth to resist the suit claim. Petitioner thereupon moved two applications one for examining the two maternal aunts by a Medical Board to assess their mental capacity and the other for amending the plaint so as to seek additional relief of declaration that the sale deed alleged to have been executed in favour of the defendant by the two aunts is a sham document. To both applications the defendant filed objections. During the enquiry, one of the two aunts passed away. The court below summoned the other, namely Lakshmi, and after conducting a voidire formed an opinion that she is capable of giving rational answers. Ext.P8 order was W.P.(C).No.29655 OF 2008 Page numbers passed declining the request of the petitioner to send the above person, Lakshmi, for examination by a medical board. The amendment application was also turned down by the court holding that it would change the character of the suit and also amount to substitution of some allegations already stated in the plaint. Ext.P11 is the copy of that order. Propriety and correctness of Ext.P8 and P11 orders are challenged in the writ petition invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 3. So far as Ext.P8 order is concerned, in the given facts and materials produced, I find there is no impropriety or illegality. Intruding the privacy of a person directing his examination by a medical board on an application by any other party by orders of the court can be proceeded only on satisfaction of exceptional circumstances justifying such a course of action as required to advance the W.P.(C).No.29655 OF 2008 Page numbers ends of justice. The mandate under Order 32 Rule 15 of the Code of Civil Procedure, which is applicable in the case of minors, persons suffering from mental illness etc. has to be strictly adhered to by the court in proceeding with an enquiry over such matter. So much so, the challenge against Ext.P8 order cannot be appreciated. But with reference to Ext.P11 order declining the amendment application moved by the plaintiff, after perusing that order, I find, the court below has not taken into consideration the subsequent events which prompted the petitioner to seek for such an amendment. Merit of her case has to be decided after taking evidence. It is open to the petitioner to file a separate suit in respect of the relief canvassed by the amendment, but, in the very same suit if the amendment canvassed is permitted to it would avoid multiplicity of proceedings. It cannot be stated that the challenge raised impeaching the validity of the sale deed executed by the two aunts in favour of the defendant W.P.(C).No.29655 OF 2008 Page numbers has no nexus with the cause of action raised in the suit already instituted seeking a decree of permanent prohibitory injunction. The court below is not correct in holding that the character of the suit will change and so much so, the amendment cannot be allowed. Setting aside Ext.P11 order, I direct the court below to consider Ext.P9 amendment application of the plaintiff afresh and pass appropriate orders in accordance with law. I make it clear that I have not expressed any opinion on the merit of the amendment sought for, but, only that its dismissal for the reasons stated are not proper and correct. I also make it clear that the court below has to dispose the suit in accordance with law, untrammelled by the observations made in Ext.P8 and P11 orders. Subject to the observations made above, the writ petition is disposed. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// vdv P.A TO JUDGE W.P.(C).No.29655 OF 2008 Page numbers