IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 19TH AUGUST 2011 / 28TH SRAVANA 1933 OP(C).No. 2755 of 2011(O) ------------------------ OS.112/2005 of ADL.SUB COURT, THALASSERY .................... PETITIONERS ----------------------- 1. ALIMA BEVI, W/O.MUHAMMEDKUNHI HAJI, ALIMA MANZIL,KANNOTHUMCHAL,NEAR MASJID, KANNUR-6, PRESENTLY R/AT BLK 237, CHOA CHU KANG CENTRAL #09-57, SINGAPORE-680237, REPRESENTED BY POWER OF ATTORNEY HOLDER, C.K.JAYAKUMAR, S/O.KRISHNAN, KRISHNA NIVAS, TALAP, KANNUR-2. 2. FATIMAH BIBI, AGED 38 YEARS, D/O.MUHAMMEDKUNHI HAJI, ALIMA MANZIL, NEAR MASJID, KANNOTHUMCHAL, KANNUR-6, PRESENTLY R/AT BLK 237, CHOA CHU KANG CENTRAL #09-57, SINGAPORE-680237, REPRESENTED BY POWER OF ATTORNEY HOLDER, C.K.JAYAKUMAR, S/O.KRISHNAN, KRISHNA NIVAS, TALAP, KANNUR-2. 3. AHISA BEVI, D/O.MUHAMMEDKUNHI HAJI, ALIMA MANZIL,NEAR MASJID, KANNOTHUMCHAL, KANNUR-6, PRESENTLY R/AT BLK 237, CHOA CHU KANG CENTRAL #09-57, SINGAPORE-680237, REPRESENTED BY POWER OF ATTORNEY HOLDER, C.K.JAYAKUMAR, S/O.KRISHNAN, KRISHNA NIVAS, TALAP, KANNUR-2. 4. MOHAMMED ALI, AGED 32 YEARSS/O.MUHAMMEDKUNHI HAJI, ALIMA MANZIL,NEAR MASJID, KANNOTHUMCHAL,KANNUR-6, PRESENTLY R/AT BLK 237, CHOA CHU KANG CENTRAL #09-57, SINGAPORE-680237, REPRESENTED BY POWER OF ATTORNEY HOLDER, C.K.JAYAKUMAR, S/O.KRISHNAN, KRISHNA NIVAS, TALAP, KANNUR-2. 5. ABDULLAH, S/O.MUHAMMEDKUNHI HAJI, ALIMA MANZIL,NEAR MASJID, KANNOTHUMCHAL,KANNUR-6, PRESENTLY R/AT BLK 237, CHOA CHU KANG CENTRAL #09-57, SINGAPORE-680237, REPRESENTED BY POWER OF ATTORNEY HOLDER, C.K.JAYAKUMAR, S/O.KRISHNAN, KRISHNA NIVAS, TALAP, KANNUR-2. OP(C).No. 2755 of 2011(O) ----------------------------------- 6. MUSA, S/O.MUHAMMEDKUNHI HAJI, ALIMA MANZIL,NEAR MASJID, KANNOTHUMCHAL, KANNUR-6, PRESENTLY R/AT BLK 237, CHOA CHU KANG CENTRAL #09-57, SINGAPORE-680237, REPRESENTED BY POWER OF ATTORNEY HOLDER, C.K.JAYAKUMAR, S/O.KRISHNAN, KRISHNA NIVAS, TALAP, KANNUR-2. BY ADV. SRI.P.U.SHAILAJAN RESPONDENT(S): ------------------------- 1. KARACHAN VEETIL MARIYAM, W/O.MUHAMMEDKUNHI HAJI, MADAYI AMSOM, MUTTOM.P.O., VANGARA. 671 533. 2. KARACHAN VEETIL SHAHUL HAMEED, S/O.MUHAMMEDKUNHI HAJI, MADAYI AMSOM, MUTTOM.P.O., VANGARA. 671 533. 3. KARACHAN VEETIL HUSSAIN, S/O.MUHAMMEDKUNHI HAJI, MADAYI AMSOM, MUTTOM.P.O., VANGARA. 671 533. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 19/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C).No. 2755 of 2011(O) ---------------------------------- APPENDIX --------------- PETITIONER'S EXHIBITS --------------------------------------- EXT.P1. COPY OF THE POWER OF ATTORNEY DEED EXT.P2. COPY OF THE PLAINT IN O.S. NO.112/2005 BEFORE THE ADDITIONAL SUB COURT, THALASSERY. EXT.P3. COPY OF THE PRELIMINARY DECREE IN OS. NO112/2005 OF THE SUB COURT, THALASSERY EXT.P4. COPY OF THE PETITION FILED BY THE RESPONDENTS AS IA NO.48/2008. EXT.P5. COPY OF THE WRITTEN STATEMENT IN IA NO.48/2008 IN O.S. NO.112/05. EXT.P6. COPY OF THE PEITITION AND THE ORDER IN THE PETITION. EXT.P7. COPY of the DEPOSITION OF THE U.D. CLERK ATTACHED TO THE OFFICE OF THE SUPERINTENDENT OF POLICE. RESPONDENT'S EXHIBITS : NIL ------------------------------------- / TRUE COPY / P.A. TO JUDGE VK THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.2755 of 2011 --------------------------------------- Dated this 19th day of August, 2011 JUDGMENT Petitioners are plaintiffs in O.S.No.112 of 2005 of the Court of learned Additional Sub Judge, Thalassery. They sued respondents for partition of properties which belonged to the late Muhammed Kunji Haji. They claimed that first petitioner and the first respondent are the wives of the said Muhammed Kunhi Haji and that other petitioners and respondents are their children. Petitioners filed the suit through their power of attorney holder. Respondents filed I.A.No.48 of 2008 before learned Sub Judge purporting to be under Sec.195(1)(b)(i) of the Code of Criminal Procedure (for short, "the Code”) requesting to file a complaint against petitioners for (allegedly) fabricating evidence punishable under Sec.193 of the Indian Penal Code alleging that first petitioner, notwithstanding that she is not an Indian citizen has claimed to be so in the power of attorney. That matter is now being enquired into by the learned Sub Judge. It would appear that as per order on 31.03.2008 summons was issued to the Superintendent of Police, Kannur to give evidence. Learned counsel submits that summons was issued to the Superintendent of Police but a U.D Clerk attached to his office was examined as witness. O.P(C).No.2755 of 2011 -: 2 :- 2. Challenge is to the proceeding in I.A.No.48 of 2008. Learned counsel has placed reliance on the decision in Sebastian Vs. Mathai (2005(4) KLT 791) to contend that issue regarding citizenship is not to be decided by the Court but, by the Central Government. Learned counsel submitted that in the reported decision, in the absence of decision of the Central Government the mere fact of an Indian citizen holding a canadian passport was not sufficient to hold that she has ceased to be an Indian citizen. 3. I am inclined to think that it is not necessary to go into those questions in this proceeding. What I can understand from the statement of learned counsel is that learned Sub Judge is conducting an enquiry as contemplated under Sec.340 of the Code. In that enquiry if any decision adverse to the petitioners is taken, they have a right of appeal under Sec.341 of the Code. There is no reason why this Court should interfere with the on going enquiry at this stage. Resultantly, without prejudice to the right of petitioners to take up their contentions in I.A.No.48 of 2008 and to challenge the ultimate order if any passed against them in that proceeding as provided under the law, this original petition is closed. (THOMAS P JOSEPH, JUDGE) Sbna/-