IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 21ST OCTOBER 2011 / 29TH ASWINA 1933 OP(C).No. 2866 of 2011(O) -------------------------------- AGAINST THE ORDER DATED 26/08/2011 IN IA.1230/2011 IN OS.3/2010 of SUB COURT, SULTHAN BATHERY .................... PETITIONERS/PLAINTIFFS: -------------------------------- 1. P.R.ANILKUMAR, S/O.RAMU,AGED 46 YEARS, VINOD BHAVAN,AMBALAKUNNU,P.O.MEPPADI,KOTTAPPADI AMSOM & DESOM,VAITHIRY TALUK,WAYNAD DIST.REP. BY P/A HOLDER O.P.PRAMIL,S/O.K.T.BALAKRISHNAN, OLIYAMPARAMBATH, P.O.ERANHIKKAL, VENGALI, KOZHIKODE. 2. P.R.RAJESH, S/O. RAMU, AGED 42 YEARS, VINOD BHAVAN,AMBALAKUNNU,P.O.MEPPADI,KOTTAPPADI AMSOM & DESOM,VAITHIRY TALUK,WAYNAD DIST.REP. BY P/A HOLDER O.P.PRAMIL,S/O.K.T.BALAKRISHNAN, OLIYAMPARAMBATH, P.O.ERANHIKKAL, VENGALI, KOZHIKODE. BY ADVS. SRI.V.T.MADHAVANUNNI SRI.V.A.SATHEESH RESPONDENT(S): DEFENDANTS ------------------------------------- 1. SAROJINI, W/O. RAMU, AGED 72 YEARS, VINOD BHAVAN, AMBALAKUNNU, POST MEPPADI, KOTTAPPADI AMSOM AND DESOM P.O., VYTHIRY TALUK, WAYANAD DISTRICT-673 577. 2. P.R.VINODKUMAR,S/O.RAMU, AGED 50 YEARS, VINOD BHAVAN, AMBALAKUNNU, POST MEPPADI, KOTTAPPADI AMSOM AND DESOM P.O., VYTHIRY TALUK, WAYANAD DISTRICT-673 577. svs ............2/-.... ...2... OPC. NO.2866/2011 3. P.R.BABURAJ,S/O.RAMU, AGED 48 YEARS, VINOD BHAVAN, AMBALAKUNNU, POST MEPPADI, KOTTAPPADI AMSOM AND DESOM P.O., VYTHIRY TALUK, WAYANAD DISTRICT-673 577. 4. P.R.SHAJIKUMAR, S/O.RAMU,AGED 43 YEARS, VINOD BHAVAN, AMBALAKUNNU, POST MEPPADI, KOTTAPPADI AMSOM AND DESOM P.O., VYTHIRY TALUK, WAYANAD DISTRICT-673 577. 5. P.R.SREEJITH,S/O.RAMU, AGED 38 YEARS, VINOD BHAVAN, AMBALAKUNNU, POST MEPPADI, KOTTAPPADI AMSOM AND DESOM P.O., VYTHIRY TALUK, WAYANAD DISTRICT-673 577. 6. P.R.ANITHA SAROJ, D/O. RAMU, AGED 45 YEARS, ALZA PALM SPRINGS BUILDING, FLAT NO.B2, NEAR TAGORE CENTENARY HALL, NAGARAM AMSOM AND DESOM,P.O.EDAKKAD KOZHIKODE TALUK-673 032. 7. P.R. SYLAJA, D/O. RAMU, AGED 41 YEARS, ARAYADATHU, KUNDUPARAMBU P.O., EDAKKAD AMSOM AND DESOM, KOZHIKODE TALUK-673 032. R1,4 BY ADV. SRI.K.B.SIVARAMAKRISHNAN THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 21/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs O.P.(C). NO. 2866/2011 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE POWER OF ATTORNEY EXECUTED BY THE PETITIONERS IN FAVOUR OF O.P.PRAMIL. P2: COPY OF PLAINT IN O.S.NO.3/2010 IN THE COURT OF THE SUBORDINATE JUDGE, SULTHANBATHERY DATED 0/01/2010. P3: COPY OF WRITTEN STATEMENT FILED BY RESPONDENT NO.1 IN O.S. NO.3/2010 IN THE COURT OF THE SUBORDINATE JUDGE, SULTHANBATHERY DATED 12/03/2010. P4: COPY OF THE AFFIDAVIT IN SUPPORT OF THE I.A. NO.1230/2011 DATED 25/08/2011. P5: COPY OF THE ORDER IN I.A. NO.1230/2011 OF THE COURT OF THE SUBORDINATE JUDGE, SULTHANBATHERY DATED 26/08/2011. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A. TO JUDGE. svs THOMAS P.JOSEPH, J. ==================================== O.P(C) No.2866 of 2011 ==================================== Dated this the 21st day of October, 2011 J U D G M E N T Respondents appear through Advocate Shri K.V. Shivaramakrishnan. 2. Petitioners are the plaintiffs in O.S. No.3 of 2010 of the court of learned Sub Judge, Sulthan Bathery. That is a suit for partition filed by petitioners. A connected suit filed by the 4th respondent is also tagged on to O.S. No.3 of 2010. First respondent is a lady aged about 78 years and wanted her examination to be conducted as early as possible. Leaned Sub judge allowed the request and ordered her examination on commission on 27.08.2011. Petitioners filed Ext.P4, application – I.A. No.1230 of 2011 on 25.08.2011 requesting adjournment of examination beyond the Onam holidays. That application was dismissed as per Ext.P5, order. Later learned Sub Judge posted the case for evidence of petitioners on 13.10.2011 and on request it was adjourned to 24.10.2011. Exhibit P5, order is under challenge. 3. Learned counsel for petitioners requests an opportunity O.P(C) No.2866 of 2011 -: 2 :- to cross-examine the first respondent. Learned counsel for first respondent submitted that first respondent is pretty old, she is residing at Kozhikode and that Advocate Commissioner has to come from Sulthan Bathery. Asking the first respondent to bear the expenses of the Commissioner for the non-co-operation or inconvenience of petitioners is hard, it is contended. 4. Having heard counsel on both sides I am inclined to give petitioners an opportunity to cross-examine the first respondent but at the expense of petitioners. Resultantly, Original Petition is allowed. Exhibit P5, order is set aside. I.A. No.1230 of 2011 is allowed giving petitioners opportunity to cross-examine the first respondent at her residence wherever it be. It is directed that examination shall be held through commission at the expense of petitioners. Learned Sub Judge shall appoint the Commissioner as early as possible for cross-examination of the first respondent as above stated. Learned Sub Judge shall fix the batta payable by petitioners to the Advocate Commissioner. THOMAS P. JOSEPH, JUDGE. vsv