IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 6TH APRIL 2009 / 16TH CHAITHRA 1931 WP(C).No. 9015 of 2009(O) ---------------------------------- OS.94/2002 of ADL.SUB COURT, THALASSERY .................... PETITIONER : ---------------- P.C.BHAGYA SHOBHANA, D/O.SARADA, RESIDING AT 'SREE', CHALAD, KANNUR DT. BY ADV. SRI.A.MOHAMED MUSTAQUE RESPONDENTS : ------------------- 1. P.C.SARADA, D/O.ANANDAN, RESIDING AT "SANGEETH", ERATTAKANNANPALAM, PALLIKUNNU, KANNUR DT. 2. M.C.JAYARAJAN, S/O.SARADA, VIRIPULLAN HOUSE, PALLIYANMOOLA, PO ALAVIL, KANNUR DT. 3. M.C.GEETHA, W/O.RAVEENDRAN, "SANGEETH", ERATTAKANNANPALAM, PALLIKUNNU, KANNUR DT. 4. M.C.RAJARATNAM, S/O.SARADA, "BHAGYA NIVAS", OPP BALAVADI, PO ADIYURA PADAVU, MANGALORE-6, KARNATAKA. 5. KUTTICHI VEETIL SUJATHA, W/O.LATE PREMARAJAN, KUTTICHI VEEDU, AZHIKKAL, KANNUR DT. 6. AMRITH, S/O.SUJATHA, RESIDING AT KUTTICHI VEEDU, AZHIKKAL, KANNUR DT. 7. APARNA, D/O.SUJATHA, RESIDING AT -DO- -DO-. 8. ARPITHA, D/O.SUJATHA, RESIDING AT -DO- -DO-. WP(C).No. 9015 of 2009(O) 9. M.C.SREEHARI REGHUNATHAN, D/O.BHAGYA SHOBHANA, "SREE", CHALAD, KANNUR DT. 10. M.C.DEEPA, D/O.BHAGYA SHOBHANA, RESIDING AT "SREE" CHALAD, KANNUR DT. 11. NISHANTH, S/O.BHAGYA SHOBHANA, RESIDING AT "SREE", CHALAD, KANNUR DT. 12. SHAHIN RAVEENDRAN, S/O.GEETHA, "SANGEETH", ERATTAKANNANPALAM, PALLIKUNNU, KANNUR DT. 13. PALLIKUNNEL MANOHARAN, S/O.KAMALA AMMA, BUSINESS, AZHIKKAL, KANNUR DT. * 14. MUHAMMED KUNHI, S/O.MAYEN, MATTOOL, KANNUR TALUK, KANNUR DT. * 15. A.V.KUNHIPATHU, W/O.MUHAMMED KUNHI, -DO- -DO- * 16. HAFSATH, D/O.MUHAMMED KUNHI -DO- -DO- * 17. MANSOOR, S/O.MUHAMMED KUNHI, -DO- -DO- * 18. SAYID, S/O.MUHAMMED KUNHI, -DO- -DO * 19. RASHEEDA, D/O.MUHAMMED KUNHI, -DO- -DO- * 20. K.T.P.MUHAMMED, S/O.SAVANKUTTY, CHERUKUNNU, KANNUR TALUK * 21. O.V.ZAKEER, S/O.MOIDU, KANNOTHUMCHAL WARD, KANNUR TALUK, KANNUR DT. * 22. K.P.RASHEED, S/O.MUHAMMED, CHERUKUNNU AMSOM, DESOM KANNUR TALUK. ADV. SRI.V.R.KESAVA KAIMAL FOR R1 TO 4,12 & 13 SRI.P.U.SHAILAJAN FOR R15-18 * RESPONDENTS 14 TO 22 ARE IMPLEADED AS PER ORDER DATED 02.04.2009 IN I.A.NO.4869 OF 2009 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06/04/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. --------------------------------------- W.P.(C) No.9015 OF 2009 --------------------------------------- Dated this the 6th day of April, 2009 JUDGMENT The plaintiff in O.S.No.94/2002 on the file of the Court of the Additional Subordinate Judge of Thalassery has filed this Writ Petition challenging Ext.P7 order dated 13.03.2009 in I.A.Nos.451/2009 and 452/2009, by which the court below rejected the prayer to re-open the evidence and to examine a witness on the side of the petitioner. 2. The suit was filed for partition on the basis of a codicil executed by one Anandan. There are two attesting witnesses to the codicil. They are, (1) the father of the Writ Petitioner and (2) Gopalan. The father of the Writ Petitioner is no more. Gopalan, who was the scribe and attesting witness is also no more. The petitioner wanted to examine one Raghavan, who was an assistant of Gopalan in order to prove the signature of Gopalan. Raghavan was to be examined on 19.01.2009. But he died on 18.01.2009. On 19.01.2009, the petitioner filed an affidavit before the court below stating that Raghavan died on 18.01.2009. W.P.(C) No.9015 of 2009 2 3. The evidence in the case was closed on 22.01.2009. On 29.01.2009, the petitioner filed I.A.Nos.451/2009 and 452/2009 (Exts.P5 and P6) to re-open the evidence and to receive the additional witness list. The petitioner sought permission to examine one Nanu, who according to the petitioner, was working with Gopalan and who is conversant with the handwriting and signature of Gopalan. The court below dismissed the applications by the order impugned in the Writ Petition. 4. The reasons stated by the court below for dismissal of the application are :- i) The application is highly belated. ii) The suit is listed for trial. iii) There is no evidence to prove that Raghavan, the witness who was sought to be examined was no more. 5. To prove that Raghavan was dead, the petitioner relies on Ext.P3 newspaper publication as well as Ext.P4 affidavit filed by her on 19.01.2009. The court below, evidently did not advert to the affidavit dated 19.01.2009. It is to be W.P.(C) No.9015 of 2009 3 noted that there is no case for any of the parties that Raghavan is alive. The affidavit dated 19.01.2009 is also not disputed. Therefore, one of the main reasons stated by the court below for dismissing the applications is not a good reason for dismissal of the applications. 6. That the suit was listed for trial, is not disputed. The petitioner was ready to examine Raghavan on 19.01.2009, but he died on 18.01.2009. In Ext.P6 affidavit, it is stated that the witness shown in the additional witness list is acquainted with the handwriting of Gopalan, one of the attesting witnesses in the codicil and that the evidence of the witness sought to be examined is highly essential for a proper disposal of the suit. 7. Heard the counsel appearing for the parties. After considering all the facts and circumstances of the case and the arguments put forward by the learned counsel, I am of the view that the court below should have allowed the petitioner to examine the witness shown in Ext.P6 witness list. That the witness who was sought to be examined died on the previous day of the date fixed for his examination makes the application filed by the petitioner bonafide, though there is delay of about W.P.(C) No.9015 of 2009 4 10 days in filing that application. The applications, namely, I.A.Nos.451/2009 and 452/2009 were filed on 29.01.2009. After filing those applications, the witnesses on the side of the defendants were examined. The court below considered those applications only thereafter, on 09.03.2009 and the applications were dismissed on 13.03.2009. In the facts and circumstances of the case, Ext.P7 order passed by the court below is set aside and I.A.Nos.451/2009 and 452/2009 are allowed. The petitioner shall make available the witnesses for examination on the date of next posting of the case and no adjournment shall be sought for except when it is absolutely essential and for reasons beyond the control of the petitioner or the witnesses. The court below shall examine the witnesses on the date on which the case is posted. The Writ Petition is allowed as indicated above. K.T.SANKARAN JUDGE pac