IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 6TH MARCH 2008 / 16TH PHALGUNA 1929 WP(C).No. 7641 of 2008(I) ------------------------- AGAINST THE ORDER DATED 22.2.08 IN IA.752/2008 IN OS.75/2008 of MUNSIFF COURT, HOSDRUG .................... PETITIONER: ------------ MADAPURATH BEEFATHUMMA W/O.M.V.C. ABDULLA HAJI, RESIDING AT MADIKKUNNU HOUSE, CHERUVATHUR VILLAGE HOSDRUG TALUK. BY ADV. SRI.D.KRISHNA PRASAD SRI.D.NARENDRANATH SRI.M.HARISHARMA SRI.T.P.ELDHOSE SMT.O.K.SANTHA RESPONDENTS: ------------- 1. M.V.ABDUL RAHIMAN HAJI S/O.KUTTY MOOSA, RESIDING AT THEKKEPURAM PADANNA VILLAGE, HOSDRUG TALUK, P.O.PADANNA. 2. M.V.NAFEESA HAJUMMA D/O.KUTTY MOOSA, RESIDING AT THEKKEPURAM PADANNA VILLAGE, HOSDRUG TALUK, P.O.PADANNA. 3. MADAPURATH SAHIRA D/O.M.V.C. ABDULLA HAJI, RESIDING AT MADIKKUNNU HOUSE, CHERUVATHUR VILLAGE HOSDRUG TALUK. 4. M.V.C. ABDULLA HAJI, S/O.KUTTI MOOSA RESIDING AT MADIKKUNNU HOUSE, CHERUVATHUR VILLAGE HOSDRUG TALUK. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. -------------------------- W.P.(C). NO. 7641 OF 2008 --------------------- Dated this the 6th day of March, 2008 JUDGMENT This writ petition is preferred against the order in IA 752/08 in OS 75/08. The plaintiffs had filed the suit for declaration that the registered sale deed executed by 1st defendant in favour of 2nd defendant in respect of A schedule property in her capacity as the guardian of the 3rd defendant is not valid and binding upon the plaintiffs and A schedule properties. The plaintiffs in the suit are claiming right only on the basis that they will become the legal heirs in the event of the death of 3rd defendant. So far as 3rd defendant is alive there is no right at all for the plaintiffs to institute a suit is the question to be considered by the court. It is at this stage they have moved an application for examination of 3rd defendant, who after a serious accident is undergoing continuous treatment and is almost a vegetable, according to the plaintiffs in the suit. It is desirable in a case of this nature that the question whether the very suit is maintainable at that stage is the principal factor to be considered before trying to examine what is the health condition of the 3rd WPC NO 7641/08 2 defendant. In other words, if we are determining the said factum now, it will be putting the cart before the horse, which will not be proper. I find that the court below has not considered the matter in that angle and therefore it suffers from illegality per se and therefore it is set aside. I direct the court below to consider IA 752/08 in OS 75/08 afresh, after hearing both sides. Needless to say that till that time no commission be appointed to find out the health condition of the 3rd defendant. The writ petition is disposed of accordingly. M.N.KRISHNAN, JUDGE vps WPC NO 7641/08 3 WPC NO 7641/08 4