IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 6TH APRIL 2009 / 16TH CHAITHRA 1931 WP(C).No. 6670 of 2009(O) ---------------------------------- AGAINST THE ORDER DATED / / IN IA 590/2009 IN OS.328/2006 of ADDL.M.C., KOTTAYAM .................... PETITIONERS : ----------------- 1. WILLIAM SCARIA, KALARICKAL VEEDU, VIJAYAPURAM VILLAGE, KOTTAYAM DISTRICT. 2. CHIPPY WILLIAM, W/O.WILLIAMS, KALARICKAL VEEDU, VIJAYAPURAM VILLAGE, KOTTAYAM DISTRICT. 3. ALEYAMMA VARKEY, W/O.VARKEY, CHIRAYIL HOUSE, VADAVATHOOR P.O., KOTTAYAM. BY ADV. SRI.SARVOTHAMAN RESPONDENT : ----------------- NIDHI GEORGE, VELLOOKUNNEL, VIJAYAPURAM VILLAGE, KOTTAYAM DISTRICT. ADV. SRI.JACOB THOMAS THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06/04/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. --------------------------------------- W.P.(C) No.6670 OF 2009 --------------------------------------- Dated this the 6th day of April, 2009 JUDGMENT The petitioners are the defendants in O.S.No.328/2006 on the file of the Court of the Additional Munsiff of Kottayam. The suit was listed for trial on 15.01.2009. The petitioners filed Ext.P6 witness schedule on that day showing the name of one Varghese alias Jose. The plaintiff, and the parties on the side of the defendants were examined. The suit was posted for further evidence on 13.02.2009. Stating that the witness Varghese alias Jose had gone to Delhi, another witness list dated 11.02.2009 was filed seeking permission to examine one Krishnankutty as witness for the defendants. An application was filed to accept the witness list. It is stated that Krishnankutty, the witness who was sought to be examined was present in court on 13.02.2009 and his proof affidavit was also filed which is marked as Ext.P8 in the Writ Petition. On 13.02.2009 without examining Krishnankutty as a witness, the evidence on the side of the defendants was closed by the court. On 17.02.2009, the defendants filed I.A.No.590/2009 to W.P.(C) No.6670 of 2009 2 re-open the evidence which was dismissed by the court below as per Ext.P10 order dated 19.02.2009. The court below held in Ext.P10 order that there is no merit in the application and there is no explanation for the delay. 2. Heard the learned counsel for the petitioners and the learned counsel for the respondent. It is true that the defendants filed the witness schedule on the date on which the suit was listed for trial. It is also true that, that witness was not available for examination. But the defendants had filed another witness list on 11.02.2009, two days before the posting of the case. On 13.02.2009, the witness was also present and his proof affidavit was filed. I am of the view that the court below could allow the application and thus avoid shutting out of evidence and at the same time by compensating the plaintiff for the inconvenience. 3. Accordingly Ext.P10 order dated 19.02.2009 is set aside and I.A.No.590/2009 is allowed on condition that the petitioners/defendants shall pay a sum of Rs.1,000/- as costs to the plaintiff. Costs shall be paid on or before 25.05.2009. On payment of costs, the court below shall permit either W.P.(C) No.6670 of 2009 3 Krishnankutty or Varghese alias Jose or both to be examined on the side of the defendants, provided the witnesses are made available before the court on the date of posting. If the petitioners fail to pay the costs, Ext.P10 order would remain to be in force and the Writ Petition shall be treated as dismissed. The Writ Petition is allowed as above. K.T.SANKARAN JUDGE pac