IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 12TH JULY 2010 / 21ST ASHADHA 1932 WP(C).No. 839 of 2010(O) ------------------------ IA NO.5070/2009 IN OS.426/2002 of I ADDL.SUB COURT, KOZHIKODE .................... PETITIONER(S): --------------- THEKKEVALIYA VEETTIL GOPALAKRISHNAN, S/O.NARAYANA PILLAI,KAMMATHILANE, NAGARAM AMSOM DESOM,KOZHIKODE 673 001. BY ADV. SRI.K.JAYAKUMAR, SENIOR ADVOCATE SRI.P.B.KRISHNAN SMT.GEETHA P.MENON SRI.P.M.NEELAKANDAN RESPONDENT(S): --------------- 1. PRABHAVATHI, W/O.SREEVALSALANJANAN, THEKKEVALLIYA VEEDU,KAMMATHILANE, NAGARAM AMSOM DESOM, KOZHIKODE TALUK-673 001. 2. SONU NARAYANAN, S/O. SREEVALSALANJANAN, AGED 15, IN DO, REPRESENTED BY GUARDIAN MOTHER RESPONDENT NO.1, PRABHAVATHI. 3. A.P.KRISHNA KUMAR, S/O.A.P.BALAKRISHANA PILLA,BRAHMANDA BAVAN, KOTTOOLI AMSOM, PARAYANCHERI DESOM, KOZHIKODE- 673 005. 4. RENUKA KRISHNA KUMAR, D/O.T.V.BALAKRISHNAN, IN DO. DO. 5. SAI NARAYANAN, S/O. DO. IN DO. DO. 6. USHA SAI NARAYANAN, D/O.C.NARAYANAN, IN DO. DO. ADV. SRI.R.RAMADAS FOR R3 & R4 SRI.JACOB ABRAHAM FOR R1 & R2 SMT.KOCHUMOL KODUVATH FOR R1 & R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.839/2010 ORDER ON IA NO.8887/2010 IN WP(C) NO.839/2010 DISMISSED 12.07.2010 Sd/-THOMAS P.JOSEPH, JUDGE APPENDIX PETITIONER'S EXHIBITS: EXT.P1 DATED 22.11.2002, TRUE COPYH OF PLAINT IN OS 426/2002 OF SUB COURT, KOZHIKODE EXT.P2 DATED 11.5.2003, TRUE COPY OF JOINT WRITTEN STATEMENT FILED BY THE PETITIONER AND RESPONDENT 1 IN OS 426/2002 EXT.P3 DATED 5.12.2009, TRUE COPY OF APPLICATION A NO.5070/2009 IN OS 426/2002 FILED BY RESPONDENTS 1 AND 2 EXT.P4 DATED 5.12.2009, TRUE COPY OF THE OBJECTION FILED BY RESPONDENT NO.1, IA NO.5070/2009 EXT.P5 DATED 14.12.2009, TRUE COPY OF ORDER IN IA NO.5070/2009 //TRUE COPY// THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.839 of 2010 -------------------------------------- Dated this the 12th day of July, 2010. JUDGMENT There was a decree for partition of suit properties in O.S.No.66 of 1968 of the court of learned Sub Judge, Kozhikode. Thereafter daughters of defendant No.3 filed O.S.No.787 of 1994 and there also a decree for partition was passed. Things did not end there. Respondent Nos.3 to 6 filed O.S.No.426 of 2002 in the same court for a declaration that decree for partition in O.S.No.787 of 1994 is not valid or binding on them and seeking partition of the suit properties allotting them also shares. In that suit, defendant Nos.3, 27 and 30, (according to defendant No.3) filed a joint written statement contending that decree in O.S.No.787 of 1994 is valid and that O.S.No.426 of 2002 is not maintainable. Defendant No.27 is the widow of the elder brother of defendant No.3 and defendant No.30 is the son of defendant No.27. O.S.No.426 of 2002 was listed on 05.12.2009. At that time defendant No.27 filed Ext.P3, application (I.A.No.5070 of 2009) to receive written statement filed by her stating that she has not signed vakkalath or the written statement along with defendant No.3. That application was opposed by defendant No.3. Learned Sub Judge vide Ext.P5, order allowed the application and received the written statement filed by defendant No.27 observing that the question whether defendant No.27 has signed vakkalath and joint written statement (along with defendant No.3) is a matter which required evidence and that acceptance of written statement filed by WP(C) No.839/2010 2 defendant No.27 filed along with Ext.P3, application will not cause prejudice to defendant No.3 or other contestants. That order is under challenge at the instance of defendant No.3. Learned counsel for petitioner/defendant No.3 contends that the enquiry as to whether defendant No.27 had signed vakkalath and filed written statement along with defendant No.3 for herself and on behalf of her minor children (including defendant No.30) is a matter which ought to have been conducted by the learned Sub Judge before deciding to accept written statement subsequently filed by defendant No.27. It is pointed out by learned counsel that if two written statements containing contradictory pleas are (even) tentatively on record at the time of trial it will cause inconvenience and confusion and it would prejudice defendant No.3 in that, he will not be able to effectively cross examine defendant No.27 who may go into the box to give evidence on the basis of written statement independently filed by her. Parties must have definite information before they go for trial as to the plea of the opponent they are required to meet. It is also submitted by learned counsel that even question of framing of additional issues may arise in case written statement filed by defendant No.27 is to be accepted. It is contended by learned counsel that defendant No.27 has for herself and on behalf of her minor children including defendant No.30 filed I.A.No.927 of 2007 and 928 of 2007 in O.S.No.787 of 1994 to set aside the exparte decree against them but those applications were dismissed on 18.03.2008 and that order has become final. According to the learned counsel in the circumstances contention of defendant No.27 that she had not signed vakkalath and written statement along WP(C) No.839/2010 3 with defendant No.3 ought not to have been entertained even tentatively. Learned counsel for respondent Nos.1 and 2/defendant Nos.27 and 30 contend that defendant No.30 has filed an application in O.S.No.787 of 1994, after he attained majority to set aside the exparte decree against him and that application is pending. It is also the contention of learned counsel that I.A.Nos.927 and 928 of 2007 in O.S.No.787 of 1994 were filed by defendant No.27 not on behalf of defendant No.30 also. 2. At this stage I am not required to go into the question whether defendant No.27 is entitled to file a separate written statement on the premise that she has not signed the vakkalath and/or joint written statement allegedly filed along with defendant No.3 for herself and on behalf of the minor children. That is a matter which the court below has to consider at the appropriate stage. The question now I am to consider is only whether it was proper for learned Sub Judge to have tentatively accepted written statement filed by defendant No.27 when a joint written statement allegedly filed by her is already received and is on record. The result of acceptance of the subsequent written statement is that now there are two written statements on behalf of defendant No.27, one she allegedly filed for herself and her minor children along with defendant No.3 and the other, which she has filed on her own and both containing contradictory pleas. In the circumstance question whether defendant No.27 had signed vakkalath and joint written statement along with defendant No.3 is a matter which has to be decided first before Ext.P3, WP(C) No.839/2010 4 application is disposed of . That cannot be relegated to the stage of trial of the suit as it will only create confusion and inconvenience to the parties for the reasons aforesaid. Having regard to the facts and circumstances I am inclined to think that learned Sub Judge was not correct in receiving even tentatively the written statement filed by defendant No.27. The order under challenge is therefore liable to be set aside. Resultantly this Writ Petition is allowed and Ext.P5, order (on I.A.No.5070 of 2009) is set aside. That application is remitted to the court of learned Sub Judge, Kozhikode who shall enquire into the matter and decide as to whether defendant No.27 had signed the vakkalath and/or joint written statement along with defendant No.3. The question of acceptance or rejection of written statement subsequently filed by her along with I.A.No.5070 of 2009 shall follow the result of that enquiry. THOMAS P.JOSEPH, Judge. cks