IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 11TH FEBRUARY 2008 / 22ND MAGHA 1929 WP(C).No. 4778 of 2008(R) ------------------------- (AGAINST IA Nos. 6636 & 6637 OF 2006 IN OS NO.380/04 OF SUB COURT, ERNAKULAM) PETITIONER: ------------- RAJEEV, AGED 30, S/O.KARUNAKARAN, THURUTHEL HOUSE, CHOTTANIKKARA P.O., KUREEKKAD VILLAGE, KANAYANNUR TALUK. BY ADV. SRI.M.K.SUCHEENDRAN RESPONDENTS: ---------------- 1. RAGHU, AGED 63, S/O.NALLAKKAN, MANAKKAPADATHU HOUSE, NADAMA VILLAGE, KANAYANNUR TALUK. 2. STATE OF KERALA REPRESENTED BY THE GOVERNMENT PLEADER, HIGH COURT OF KERALA, ERNAKULAM. R2 BY GOVERNMENT PLEADER, SMT.R. BINDU. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. -------------------------- W.P.(C). NO. 4778 OF 2008 --------------------- Dated this the 11th day of February, 2008 JUDGMENT This writ petition is filed against the order of the Subordinate Judge, Ernakulam in IA 6636/06 and 6637/06 in OS 380/04. These two applications are filed one to condone the delay in filing the review application and the other to review the judgment and decree. 2. The major question that arises for determination is that the suit has been decreed according to the court below on the contention being withdrawn by the defendant. It is challenged by the defendant. Therefore the only method is to consider that question and find out whether there is real withdrawal of contentions of law. 3. When the matter came up before this court under Section 227 of Constitution of India, this court held that being a disputed question of fact, involving recording of evidence, the said matter cannot be decided. It is further held that the question whether petitioner had authorised his counsel to withdraw the contention raised in the written statement and whether the withdrawal of the contentions by the counsel was unauthorisedly, is a matter that has to be decided by the evidence. So this court disposed of the matter on the ground that evidence is to be adduced in this case. 4. I had collected details with respect to the proceedings of this WPC NO 4778/08 2 case from the Sheristadar of the Subcourt. It is seen that the matter had been only posted under the heading “objection and hearing” and no posting was there for any evidence. It is true that there was no petitions filed for taking evidence. Since the entire matter revolves upon the question of the withdrawal of contentions, which require evidence, I feel certainly the court should have posted the matter for evidence and thereafter if any evidence is adduced to have recorded the same and disposed of the matter in accordance with law. Unfortunately in this case it is not posted for adducing evidence and therefore it requires interference at the hands of this court. The writ petition is allowed. The orders under challenge are set aside and the matter is remitted back to the court below with a direction to give the writ petitioner herein opportunity to adduce evidence. Needless to say, the other side is also permitted to adduce evidence in support of their contentions. Thereafter the court shall consider the matter afresh and dispose of the same in accordance with law. M.N.KRISHNAN, JUDGE vps WPC NO 4778/08 3