IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 13TH JUNE 2011 / 23RD JYAISHTA 1933 OP(C).No. 679 of 2010(O) ------------------------ OS.129/2009 of MUNSIFF COURT, VATAKARA .................... PETITIONER ------------------------------ M.A.BALAKRISHNAN, S/O.GOPALAN NAMBIAR, PENSIONER, PUTHIYOTTIL HOUSE, MUTTUNGAL, RAYARANGOTH, VATAKARA, KOZHIKODE DISTRICT. BY ADV. SRI.K.V.SOHAN SMT.SREEJA SOHAN.K. RESPONDENT(S): --------------- M.A.CHANDRASEKHARAN, S/O.GOPALAN NAMBIAR, PENSIONER, HOUSE NO.14/A/12, SUBASH NAGAR, F.C.I. MAIN ROAD, GANAPATHI, COIMBATORE, TAMIL NADU. ADV. SRI.T.SETHUMADHAVAN FOR R SRI.PUSHPARAJAN KODOTH FOR R SRI.K.JAYESH MOHANKUMAR FOR R THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 13/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C).No. 679 of 2010(O) PETITIONER'S EXTS: EXT.P1: COPY OF PLAINT FILED BY RESPONDENT AS O.S.129/2009 EXT.P2: COPY OF WRITTEN STATEMENT FILED BY THE PETITIONER IN O.S.129/09 EXT.P3: COPY OF REPLICATION FILED BY RESPONDENT IN O.S.NO.129/09 EXT.P4: COPY OF APPLICATION FILED BY THE PETITIONER UNDER R120 OF CRP EXT.P5: COPY OF COUNTER FILED BY RESPONDENT IN IA NO.1111/2010 EXT.P6: COPY OF ORDER IN I.A.1111/2010 RESPONDENTS EXTS: NIL /TRUE COPY/ P.A.TO JUDGE K.T.SANKARAN, J. ------------------------------ O.P(C)No.679 OF 2010 ------------------------------ Dated this the 13th day of June, 2011 JUDGMENT The defendant in O.S.No.129 of 2009 on the file of the Court of the Munsiff of Vatakara is aggrieved by the order dated 16th September, 2010 in I.A.No.1111 of 2010, by which the court below dismissed the application filed by the defendant under Rule 120 of the Civil Rules of Practice, Kerala. The petitioner claimed that the predecessor in title, namely, Meenakshi Amma executed a Will in his favour. The plaintiff filed a replication in which the testamentary capacity of Meenakshi Amma was disputed. The plaintiff alleged that Meenakshi Amma was not having a sound disposing state of mind at the time of the alleged execution of the Will. 2. The defendant alleged in the application filed under Rule 120 of the Civil Rules of Practice that Meenakshi Amma was taken to Coimbatore by the plaintiff and Meenakshi Amma had received her pension which was transferred to the Canara O.P(C)No.679 OF 2010 2 Bank from the District Treasury, Coimbatore. The defendant wanted cause production of the cheques allegedly issued by Meenakshi Amma for withdrawal of the amount from the Bank. The defendant also wanted cause production of the relevant files kept in the District Treasury, Coimbatore. For that purpose, the defendant filed the application under Rule 120 of the Civil Rules of Practice. 3. The court below dismissed the application on the following grounds: a. Canara Bank is not a public office or the Manager a public officer as mentioned in Rule 120 of the Civil Rules of Practice. b. The documents sought to be called for would not prove the contention of the defendant. c. Who received the pension amount is not relevant in the suit. d. It is not shown that certified copy of the documents would not be issued by the Bank or by the treasury. O.P(C)No.679 OF 2010 3 4. Learned counsel for the petitioner submitted that the documents mentioned in the application would show that Meenakshi Amma had a sound disposing state of mind at the relevant time. 5. For the purpose of protecting the interests of the defendant, I do not think it is necessary to consider the Original petition on the merits or to arrive at a conclusion as to the legality or otherwise of the order passed by the court below. It is submitted by the counsel on both sides that the suit is ripe for trial. If the petitioner/defendant wants production of certain documents either from the Canara Bank or from the District Treasury, Coimbatore, certainly, he would be entitled to file a witness list under Order 16 Rule 1 of the Code of Civil Procedure indicating whether the witness should produce the documents or give evidence or both. If such a witness list is filed, the court below shall deal with the same in accordance with law. The findings and observations in the order impugned would not be binding on the parties at the time of consideration of issue of summons to the witnesses on the basis of the O.P(C)No.679 OF 2010 4 witness list filed by the petitioner. It is also agreed by both sides that the trial of the suit can be expedited. The aforesaid submissions are recorded. The court below shall take every effort to dispose of the suit expeditiously. K.T.SANKARAN, JUDGE. cms