IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 16TH OCTOBER 2008 / 24TH ASWINA 1930 RP.No. 1087 of 2008 IN F.A.O.NO.326 OF 2007 REVIEW PETITIONER: APPELLANT: JANAKI AMMA, W/O.LATE SEKHARAN NAIR, OTTUPARA VEEDU, VELLOTTUKURUSSI DESOM, CHERUPULASSERY AMSOM, NOW RESIDING AT CAMP ROAD, TAMBARAM, CHENNAI. BY ADV. SRI.G.GOPAKUMAR (CHERTHALA) RESPONDENTS: RESPONDENTS : 1. NANIKUTTY AMMA, W/O.LATE ACHUTHAN NAIR, MANIYATH HOUSE, NEAR I.T.C., MUNDUR, PALAKKAD. 2. RADHAKRISHNAN, S/O.LATE ACHUTHAN NAIR, COMPANY EMPLOYEE, MANIYATH HOUSE, NEAR I.T.C., MUNDUR, PALAKKAD. THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 16/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: KURIAN JOSEPH & K.T.SANKARAN, JJ. ------------------------------------------------------------- Review Petition NO. 1087 of 2008 in F.A.O.No. 326 of 2007 ------------------------------------------------------------- Dated this the 16th October, 2008 O R D E R K.T.Sankaran, J. This Review Petition was necessitated because at the time of arguments, the counsel appearing for the appellant as well as the counsel for respondents were not fully conversant with the facts of the case. 2. The appeal arose out of the order in I.A.No.630 of 2007 in O.S.No.67 of 2004, on the file of the Court of the Subordinate Judge, Ottapalam, by which the court below dismissed the application under Order IX Rule 13 of the Code of Civil Procedure. By the judgment under review, we set aside the order on condition of payment of Rs.3,000/- as costs. It was made clear in the judgment that the appellant will be entitled to cross examine the plaintiff and the witnesses on the side of the plaintiff, if any. The appellant could adduce evidence and examine the witnesses shown in the witness list, if any, already filed. It was also made clear that the appellant would not be entitled to file a fresh witness R.P. NO.1087 OF 2008 IN F.A.O.NO.326 OF 2007 :: 2 :: list or examine any witness other than the witnesses shown in the witness list already filed. 3. The Review Petition is filed seeking to review the direction disentitling the appellant to file a fresh witness list. The review petitioner contends that she is relying on a Will and to prove the Will, it is necessary to examine the attesting witnesses. Such a contention was not taken in the Memorandum of Appeal or at the time of arguments. The respondents also did not point out that the appellant was relying on a Will. The counsel were not in a position to say whether the appellant had filed any witness list. The judgment setting aside of the order passed by the court below would not be beneficial to the review petitioner if she is not permitted to examine the attesting witnesses. Therefore, it is necessary to allow the Review Petition, though the error was occasioned in the circumstances mentioned above. 4. To advance the cause of justice, we would like to afford an opportunity to the review petitioner to examine the attesting witnesses in the Will relied on by her and other witnesses to prove the Will. But this opportunity afforded to the review petitioner is not without any condition. The review petitioner shall pay a sum of Rs.1,500/- to the Kerala High Court Legal Services Committee within a period of one week and shall R.P. NO.1087 OF 2008 IN F.A.O.NO.326 OF 2007 :: 3 :: produce the receipt thereof before the trial court. If the review petitioner pays the costs, the trial court will permit the review petitioner to examine the attesting witnesses and/or any other witness to prove the Will. If the review petitioner fails to pay the costs, the Review Petition will stand dismissed. The Review Petition is disposed of as above. (KURIAN JOSEPH) Judge (K.T.SANKARAN) Judge ahz/