IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 23RD MAY 2008 / 2ND JYAISHTA 1930 WP(C).No. 2126 of 2008(C) ------------------------- AGAINST THE ORDER DATED 12/12/2007 IN IA 7880/07 IN OS.681/2006 of PRINCIPAL SUB COURT,ERNAKULAM .................... PETITIONER: ------------ USHA SUBRAMANIAN, D/O. LATE VISWANATHAN AND W/O. SUBRAMANIAN, AGED 45, VATTATHARA HOUSE, KOTHAD P.O., KORAMPADAM, ERNAKULAM. BY ADV. SRI.PRAKASH P.GEORGE SRI. B.PREMNATH RESPONDENTS: --------------------- 1. SANTHOSH KUMAR, S/O. LATE VISWANATHAN, AGED 37, RESIDING AT THACHERIPPADATH HOUSE, PANANGAD DESOM, KUMBALAM VILLAGE, KANAYANNUR TALUK. 2. A.M.THILOTHAMA, W/O. LATE VISWANATHAN, AGED 67, RESIDING AT THACHERIPPADATH HOUSE, PANANGAD DESOM, KUMBALAM VILLAGE, KANAYANNUR TALUK. 3. SHEELA MOHANAN, D/O. LATE VISWANATHAN AND W/O. MOHANAN, AGED 40, RESIDING AT THOPPIL HOUSE, UDAYAMPEROOR, MANAKUNNAM VILLAGE, KANAYANNUR TALUK. BY ADV. SRI.M.K.DILEEPAN FOR R2,3 SRI.DEEPAK T.NEDUNGADAN FOR R2,3 SRI.T.VENUGOPALAN (ALUVA) FOR R2,3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/05/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC 2126/08 ORDER ON I.A. NO.3787/2008 IN WPC NO.2126/2008 DISMISSED 23.5.2008 SD/- M.SASIDHARAN NAMBIAR, JUDGE /TRUE COPY/ P.A. TO JUDGE M.SASIDHARAN NAMBIAR, J. ---------------------------------------- W.P(C) No.2126 of 2008 ---------------------------------------- Dated this the 23rd day of May, 2008 JUDGMENT The second defendant in O.S.No.681/06 on the file of Sub Court, Ernakulam is the petitioner. The suit was filed by first respondent claimant for partition. Petitioner filed Ext.P2 written statement where under she admitted the case of the plaintiff. After closing the evidence of the plaintiff, petitioner did not adduce evidence. Thereafter, evidence of the contesting defendants who resisted the claim for partition was recorded. After the evidence was closed and case was posted for arguments, petitioner filed I.A.No.7880 of 2007 to re-open the evidence and I.A.No.7875/2007 for permission to examine her husband as a witness on her behalf. Under Exts.P5 and P6 orders, learned Munsiff dismissed both these applications holding that petitioner did not adduce evidence earlier and she cannot be permitted to adduce evidence after closing the evidence as it would prejudice the contesting defendants whose evidence has already been closed. This petition is filed under Article 227 of the Constitution of India challenging Ext.P5 and P6 orders. Ext.P3, the petition filed for reopening the evidence does not disclose any reason for not examining the husband of the petitioner who was sought to be examined as a witness on her behalf as per Ext.P4 application filed by the petitioner earlier before the contesting defendants adduce evidence. What is stated in Ext.P3 is only that she was away from the house due to family commitments for one week prior to 20.11.2007 and therefore, she could not adduce evidence. If the petitioner had an intention to adduce evidence, the husband could have been examined as there is no case that husband was not available to be examined at that time. Petitioner though filed a written statement admitted the averments in the plaint and claimed her share, did not have any other separate case so as to adduce evidence to prove the same. Present attempt could only be to controvert the evidence tendered by the contesting defendants. In such circumstances, I do not find any reason to interfere with Exts.P5 and P6 orders exercising the powers of this Court under Article 227 of the Constitution of India. Petitioner is at liberty to challenge these orders, if necessary along with the final judgment. The writ petition is dismissed. M.SASIDHARAN NAMBIAR JUDGE csl