IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 20TH JANUARY 2010 / 30TH POUSHA 1931 WP(C).No. 1353 of 2010(O) ------------------------------------- IA.4472/2009 IN OS.41/1998 of PRL. MUNSIFF COURT-I, KOZHIKODE. .................... PETITIONER(S): ----------------------- MOOLAMVELLY KEEZHALATH UNNIKRISHNAN, S/O.JANAKI AMMA,'KRISNA', EDAKKAD AMSOM DESOM, KOZHIKODE DISTRICT. BY ADV. MR.K.M.SATHYANATHA MENON RESPONDENT(S): ------------------------- THAYYIL PANKAJAVALLY AMMA, W/O.BALAKRISHNAN NAIR, KARKKAYIL HOUSE, POST EDAKKAD, WEST HILL, KOZHIKODE. BY ADV. MR.K.M.FIROZ, SMT.M.SHAJNA. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20/01/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. S.S.SATHEESACHANDRAN, J. ---------------------------------------- W.P.(C).No.1353 OF 2010 -------------------------------- Dated this the 20th day of January 2010 ---------------------------------------------------------- JUDGMENT The writ petition is filed seeking the following reliefs. i) Issue a writ of certiorari or other appropriate writ, order or direction, calling the original of Ext.p7 order in I.A. No. 41/98 dated 04/01/2010 on the file of Principal Munsiff Court, Kozhikode and quash the same. ii) Issue such other appropriate writs or further relief as deemed fit and proper by this Hon'ble Court on the facts and circumstances of the case. 2. Petitioner is the defendant in O.S No. 41 of 1998 on the file of the Principal Munsiff Court - 1, Kozhikode. Suit was instituted for a decree of perpetual prohibitory injunction, but later amended seeking an additional relief of recovery of possession as well. Challenge raised in the writ petition is against Ext.P7 order passed by the learned Principal Munsiff permitting the plaintiff to examine a witness named in his additional witness schedule. Previously the suit had been decreed by the trial court but that was reversed in appeal preferred by the defendant, the present petitioner, and the appellate court, it is submitted by W.P.(C).No.1353 OF 2010 Page numbers the counsel, has fixed specific time schedule for disposal of the suit. Despite raising serious objection that even the certified copy of the commission report has not been produced before the court to examine the advocate commissioner who was cited as the witness in the additional witness schedule, according to the learned counsel, the impugned order was passed without adverting to the objections or the challenges raised. Ext.P7 is a nonspeaking order and on that solitary ground, it is liable to be quashed is the submission of the learned counsel. 3. Notice being ordered by special messenger, respondent has entered appearance through counsel. It is submitted that copy of the commission report has already been exhibited in evidence and the examination of the advocate commissioner who prepared that report is essential for a fair and proper adjudication of the suit. Taking note that the parties will get an opportunity to lead evidence only in trial, I am of the view that in the absence of culpable negligence and deliberate default a court shall not deny opportunity to a party to lead evidence even assuming that there was some delay in taking steps for summoning W.P.(C).No.1353 OF 2010 Page numbers the witness. Having regard to the submissions made and taking note of the facts and circumstances presented, I find, no interference with Ext.P7 order is called for though that order suffers from an infirmity that no reasons are expressed on the objections raised by the petitioner/defendant against the request of the plaintiff for summoning an additional witness. However, there will be a direction to the respondent/plaintiff to pay a sum of Rs.2,000/- as cost to the petitioner/defendant in taking steps belatedly for examining the witness in the case for the disposal of which time limit had been fixed by the superior forum, the appellate court, while disposing the appeal preferred against the decree passed earlier. Cost ordered by this court as above has been paid by the respondent's counsel to the learned counsel for the petitioner, and it is recorded. Court below is directed to expedite the trial of the suit and dispose it of, after hearing both sides, before closing of the courts for the mid summer vacation. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// vdv P.A TO JUDGE