IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 17TH AUGUST 2009 / 26TH SRAVANA 1931 WP(C).No. 13810 of 2009(O) -------------------------- I.A.NO.356/2009 IN OS.15/2009 of PRINCIPAL SUB COURT,ATTINGAL .................... PETITIONER(S): -------------------------- 1. MUMTHAZ, D/O PATHUMMAL BEEVI, KUNNIL PUTHEN VEEDU, NADAYARA, KANNAMBA DESOM, VARKALA VILLAGE. 2. ABDUL MUHUZIL, S/O ABDUL KALAM, KUNNIL PUTHEN VEEDU, NADAYARA, KANNAMBA DESOM, VARKALA VILLAGE. BY ADV. MR.M.P.RAMNATH RESPONDENT(S): ---------------------------- HABOOSA BEEVI, D/O KHADEEJA BEEVI, KUNNIL PUTHEN VEEDU, NADAYARA, KANNAMBA DESOM, VARKALA VILLAGE. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.13810/2009 O APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE PLAINT IN O.S.15/2007 BEFORE HON'BLE SUBORDINATE JUDGE'S COURT, ATTINGAL FILED BY THE RESPONDENT HEREIN/ PLAINTIFF. P2: COPY OF THE WRITTEN STATEMENT IN O.S.15/2007 BEFORE HON'BLE SUBORDINATE JUDGE'S COURT, ATTINGAL FILED BY THE PETITIONERS HEREIN/DEFENDANTS 1 AND 2. P3: COPY OF THE APPLICATION FILED BY THE PLAINTIFF/RESPONDENT HEREIN AS IA.356/2009. P4: COPY OF THE OBJECTIONS FILED BY THE PETITIONERS HEREIN/ DEFENDANTS DTD. 20/03/2009 TO I.A.356/2009. P5: COPY OF THE MEDICAL CERTIFICATE DTD. 28/03/2009 ISSUED TO THE RESPONDENT HEREIN BY DR.S.K.RAVINDRANATHAN. P6: COPY OF ORDER DTD. 3/04/2009 IN I.A.356/2009 IN O.S.15/2009 OF THE HON'BLE SUBORDINATE JUDGE'S COURT, ATTINGAL. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss S.S.SATHEESACHANDRAN, J. ----------------------------- W.P.(C).No.13810 OF 2009 -------------------------- Dated this the 17th day of August 2009 ------------------------------------- JUDGMENT The writ petition is filed seeking the following reliefs. i) Call for the entire records leading to Ext.P6 and issue a writ quashing / setting aside Ext.P6 order of the court below. ii) Award the cost of this writ petition. iii) Grant any other reliefs this Hon'ble Court may deem fit to grant on the facts and circumstances of the case. W.P.(C).No.13810 OF 2009 Page numbers 2. Petitioners are the defendants in O.S No. 15 of 2009 on the file of the Sub Court, Attingal. Suit filed by the respondent is one for declaring two registered documents as null and void and in the alternative for a decree of money for Rs.10,00,000/-. The respondent / plaintiff is the mother-in-law and the petitioners / defendants are the daughter-in-law and her son. Husband of the first defendant and son of the plaintiff had passed away. Under a registered power of attorney executed in favour of the son by his mother he had executed a sale deed in favour of his wife, first defendant, had given rise to the present suit after his death for the relief aforementioned for cancellation of those registered documents. The defendants filed a written statement resisting the suit claim. Respondent / plaintiff moved an application for her examination by appointment of a commission without delay stating that she requires W.P.(C).No.13810 OF 2009 Page numbers some medical treatment at Chennai. The application was objected to by the defendant contending that it can be allowed only after settling of the issues and payment of balance court fee. The court below negativing the objections, allowed the application by Ext.P6 order. Propriety and correctness of Ext.P6 order is challenged in the writ petition invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 3. Though notice was given to the respondent and also the counsel appearing for the respondent in the court below, she has not entered appearance. I heard the counsel for the petitioners. From the submissions made and taking note of the facts and circumstances presented, I find that whatever urgency canvassed by the petitioner for her examination, at present, it W.P.(C).No.13810 OF 2009 Page numbers appears to be not continuing. The examination of the plaintiff, it is noticed, was ordered by the court even without settling the issues in the suit, expressing a view that there is no time to take up the matter due to heavy pendency of cases. It is further observed that recording of evidence before framing of issues is not prohibited. I am afraid, the reasonings given by the learned Sub Judge are not correct. Parties should know what are the issues to be tried in a suit on which evidence is to be adduced. No party by seeking appointment of a commission in advance can scuttle the right of opposite party as to his entitlement to know the issues raised for trial on which evidence is to be let in. Nonframing of issues while allowing a commission application as done in the present case is not proper and correct. The learned Sub Judge is directed to frame issues in the suit within a period of three weeks, and, if any application is W.P.(C).No.13810 OF 2009 Page numbers moved for appointment of a commission, consider that application only after collecting balance court fee payable on the suit claim. Ext.P6 order is set aside. Subject to the above observations, the writ petition is closed. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A TO JUDGE vdv