IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN FRIDAY, THE 9TH JANUARY 2009 / 19TH POUSHA 1930 WP(C).No. 942 of 2009(K) ----------------------------------------- OS.511/2006 of M.C., PATHANAMTHITTA .................... PETITIONER: M.K.DIVAKARAN, S/O.KRISHNAN, AGED 78, MINI SADANAM, KUNNAMKARA, PATHANAMTHITTA. BY ADV. SRI.C.S.MANILAL RESPONDENT: OMANA, KARTHIKA HOTEL, PAZHAYATHERUVU, KOZHENCHERRY, PATHANAMTHITTA. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. -------------------------- W.P.(C)No.942 of 2009 K -------------------------- JUDGMENT Petitioner is the plaintiff in O.S.No.511/06 on the file of the Munsiff's Court, Pathanamthitta. He filed Exhibits P8 application to call for the specimen signatures of late Radhakrishnan Nair in Account No.1791 of Naranganam Service Co-operative Bank for the purpose of sending those signatures along with the disputed will of late Radhakrishnan Nair to compare the signatures in the disputed will dated 20.10.2001 with those undisputed specimen signatures as prayed for in Exhibit P9 application to the Forensic Science Laboratory, Thiruvananthapuram to get ascertained the age of the writing contained in the will deed as well as the genuineness of the signatures of the executant in the will. 2. It is submitted by counsel for the petitioner that both the above applications were dismissed by the court below on 5.1.2009. The said WPC 942/09 2 orders are not produced before this Court. 3. The prayer in this writ petition is for a direction being given to the Munsiff, Pathanamthitta to re-consider Exhibits P8 and P9 applications on merits and in the meanwhile to keep in abeyance the trial of O.S.No.511/06, listed for trial on 12.1.2009. 4. No direction can be given to the court below to re-consider Exhibits P8 and P9 applications on merits unless the order passed thereon is produced to enable this Court to see as to whether it was on merits that Exhibits P8 and P9 applications were dismissed. It is the case of the counsel for the petitioner/plaintiff that genuineness of the will set up by the respondent has to be disproved for which it is highly necessary that examination of the will with the admitted writing and signatures of the alleged executant of the will is had as prayed for in Exhibit P9 application. It is seen that both Exhibits P8 and P9 applications were being filed on WPC 942/09 3 1.1.2009 when the suit is in the list on 12.1.2009 as published sufficiently early. Written statement in the case was filed on 24.3.2007, setting up the will in defence by the defendant. Petitioner/ plaintiff ought to be aware then that the will has to be disproved to establish his case. However, no steps were taken for about nine months. The attempt of the petitioner, as is evidenced from Exhibit P10, is to see that trial of the case is got adjourned and the suit is removed from the list cannot be entertained. This writ petition, in the circumstances, is dismissed. It is made clear that dismissal of this writ petition filed without producing the orders passed on Exhibits P8 and P9 applications, will not stand in the way of the petitioner challenging the correctness of the orders passed on Exhibits P8 and P9 applications, producing those orders. 9th January, 2009 (K.P.Balachandran, Judge) tkv