IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 22ND SEPTEMBER 2011 / 31ST BHADRA 1933 OP(C).No. 3043 of 2011(O) ------------------------- IA NO.1182/2011 IN OS.268/2008 of SUB COURT,NEYYATTINKARA .................... PETITIONER (S): ------------------------------ VIJAYAKUMARAN NAIR, SON OF GANGADHARAN THAMPI, THATTANVILAKATHU VEEDU, ARAYOOR, MARIYAPURAM, NEYYATTINKARA. BY ADV. SRI.V.SURESH SRI.G.SUDHEER RESPONDENT(S): --------------- WILSON, SON OF MUTHUSWAMY NADAR, SHIBU NIVAS, PANAMKALAVILA, THETTIYOOTUPURYIDAM, AYINGMAM, PARASSALA VILLAGE, PARASSALA P.O., NEYYATTINKARA TALUK. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 22/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C)NO.3043/2011 APPENDIX PETITIONER(S) EXHIBITS EXT.P1 TRUE COPY OF THE PLAINT IN O.S.NO.268/2008 FILED BY THE RESPONDENTS BEFORE THE SUB COURT, NEYYATTINKARA DATED 5.11.2008. EXT.P2 TRUE COPY OF THE WRITTEN STATEMENT IN OS NO.268/2008 FILED BY THE PETITIONER BEFORE THE SUB COURT, NEYYATTINKARA DATED 18.1.2010. EXT.P3 TRUE COPY OF THE PROMISSORY NOTE ISSUED BY THE PETITIONER TO THE RESPONDENT. EXT.P4 TRUE COPY OF THE PETITION IA.NO.1182/2011 FILED BY THE PETITIONER BEFORE THE SUB COURT, NEYYATTINKARA DATED 30.6.2011. EXT.P5 TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENT BEFORE THE SUB COURT, NEYYATTINKARA DATED 12.7.2011. EXT.P6 TRUE COPY OF THE ORDER IN IA NO.1182/2011 IN O.S.NO.268/2008 DATED 4.8.2011 OF THE SUB COURT, NEYYATTINKARA. RESPONDENTS' EXHIBITS: NIL //TRUE COPY// THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.3043 of 2011 -------------------------------------- Dated this the 22nd day of September, 2011. JUDGMENT Defendant in O.S.No.268 of 2008 of the court of learned Sub Judge, Neyyattinkara is the petitioner. That is a suit filed by the respondent for money based on Ext.P3, demand promissory note allegedly executed by petitioner. Petitioner filed written statement contending that he has not executed any such demand promissory note. He filed Ext.P4, application to send the document to the expert for opinion. That application was dismissed by Ext.P6, order which is under challenge. 2. It is contended by learned counsel that it is incorrect to say that the application is belated. It is pointed out that the suit was rejected for non-payment of court fee and was taken back to file on 21.03.2011 and immediately thereafter Ext.P4, application is filed. 3. It is seen from Ext.P6, order that petitioner had appeared in the court below on 06.02.2009. Since written statement was not filed he was set exparte on 28.07.2009 and that order was set aside on 27.03.2010. The plaint was rejected on 18.05.2010 and taken back on 21.03.2011. The case was then posted for steps on 20.06.2011 and as no steps were taken, the case was included in the special list for trial on 28.09.2011. It is while so, that on 07.07.2011 petitioner filed Ext.P4, application with a request to advance hearing OP(C)No.3043/2011 2 of the case. That application was dismissed by Ext.P6, order. 4. I must bear in mind that if the due execution of Ext.P3, demand promissory note is denied by petitioner, the initial burden of proving its due execution is on the respondent. I must also bear in mind that when the case was posted for trial in the list, no steps were taken. In the circumstances I do not find reason to interfere with the impugned order. But, I make it clear that disposal of this Original Petition will not stand in the way of petitioner challenging the correctness of Ext.P6, order in an appeal that may be preferred against the judgment and decree in the suit. With the above observation this Original Petition is dismissed. THOMAS P.JOSEPH, Judge. cks