IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 21ST MAY 2009 / 31ST VAISAKHA 1931 WP(C).No. 5886 of 2009(O) ------------------------- OS.476/2007 of IST ADDL.SUB COURT,ERNAKULAM .................... PETITIONER(S)/DEFENDANTS 2 & 3 IN THE LOWER COURT: --------------------------------------------------- 1. SMT.PAVIZHAM @ D.INDIRA DEVI, AGED ABOUT 64 YEARS, W/O.M.K.MANIAPPAN NAIR, RESIDING AT CC 32/2274, 'SWEET DALE', P.J.ANTONY ROAD, PALARIVATTOM P.O.,ERNAKULAM. 2. K.M.HARIKUMAR, AGED ABOUT 41 YEARS, RESIDING AT CC 32/2274, 'SWEET DALE', P.J.ANTONY ROAD, PALARIVATTOM P.O.,ERNAKULAM. BY ADV. SRI.P.K.RAVINDRAN PUZHANKARA RESPONDENT(S) (PLAINTIFF & 1ST DEFENDANT IN THE LOWER COURT): ---------------------------------------- 1. M.C.THOMAS, AGED ABOUT 55 YEARS, S/O.CHACKO, MANNARUMATTATHIL HOUSE, HMT- MOOLEPADAM ROAD, NJALAKAM, KALAMASSERY P.O 2. MONCY DANIEL, AGED ABOUT 41 YEARS, S/O.DANIEL, PANACHOOR HOUSE, MULLACKAL WARD, MULLACKAL P.O., ALAPPUZHA. ADV. SRI.M.M.SAIDU MUHAMMED FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/05/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC.5886/09 APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PLAINT DATED 14.6.2007 IN O.S.NO.476 OF 2007 OF THE 1ST ADDITIONAL SUB COURT, ERNAKULAM, FILED BY THE 1ST RESPONDENT. EXT.P2: COPY OF THE WRITTEN STATEMENT DATED 15.10.2007 SUBMITTED BY THE 2ND RESPONDENT IN O.S.NO.476 OF 2007 OF THE 1ST ADDITIONAL SUB COURT, ERNAKULAM. EXT.P3: COPY OF THE WRITTEN STATEMENT DATED 15.10.2007 SUBMITTED BY THE PETITIONERS IN O.S.NO.476 OF 2007 OF THE 1ST ADDITIONAL SUB COURT, ERNAKULAM. EXT.P4: COPY OF I.A.NO.1601 OF 2009 SUBMITTED BY THE 2ND RESPONDENT ON 20.2.2009 FOR REOPENING THE EVIDENCE OF THE DEFENDANTS IN O.S.NO.476 OF 2007 OF THE 1ST ADDITIONAL SUB COURT, ERNAKULAM. EXT.P5: COPY OF I.A. FILED ON 21.2.2009 FILED BY THE PETITIONERS FOR OPPORTUNITY TO ADDUCE EVIDENCE (AWAITING TO BE NUMBERED) EXT.P6: COPY OF THE PROOF AFFIDAVIT DATED 19.2.2009 OF THE PETITIONER'S POWER OF ATTORNEY HOLDER M.K.MANIAPPAN NAIR. /TRUE COPY/ P.A. TO JUDGE S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.5886 OF 2009 (O) ----------------------------------- Dated this the 21st day of May, 2009 J U D G M E N T This writ petition is filed under Article 227 of the Constitution of India seeking the following reliefs: i. issue a writ of certiorari or such other writ, direction or order calling for the records leading to the proceedings/order dated 21.2.2009 in O.S.No.476 of 2007 on the file of the 1st Additional Sub Court, Ernakulam and quash the same while permitting the petitioners to adduce oral evidence through their Power of Attorney Holder on the basis of Ext.P6 proof affidavit submitted in lieu of chief examination. ii. Award the petitioners the costs of these proceedings; and iii. Grant such other just and proper relief(s) as this Honourable Court may deem fit and proper. Petitioners, two in number, are the defendents 2 and 3 in O.S.No.476/2007 on the file of the 1st Additional Sub Court, WPC.5886/09 2 Ernakulam. Suit was one for specific performance of an agreement of sale, filed by the 1st respondent, the plaintiff. The grievance of the petitioners is that the court below had unjustifiably denied opportunity to them to lead evidence in support of their case. The court, after examination of the plaintiff, ordered for examining the 3rd defendant through Commission. The 1st defendant in the suit also wanted to lead evidence, but there was no order by the court to record his evidence by Commission. So much so, the counsel for both sides brought the matter to the notice of the court, the next day, and thereupon the court permitted to record the evidence of the 1st defendant also. The examination of the 1st defendant by Commission continued till late evening, and hence, there was no more time to record the evidence of the 3rd defendant on that day, is the submission of the learned counsel for the petitioners. The next day, when the matter was reported, the court was not inclined to give any more opportunity to the 2nd and 3rd defendants to lead their evidence, which was prematurely closed and the case was posted for judgment. The petitioners approached this Court WPC.5886/09 3 with the above writ petition seeking the indulgence of this Court granting them an opportunity to lead evidence in the case. The learned counsel appearing for the 1st respondent submitted that the statements made by the counsel for the petitioners are not fully correct, but, he does not stand on technicalities as the plaintiff is only interested in getting a decision on merits. Having regard to the submissions made by the counsel of both sides and taking note of the facts and circumstances involved, it appears, the premature closure of the evidence, without affording an opportunity to the 2nd and 3rd defendants, the petitioners in the case, to lead evidence was not justified. So much so, there will be a direction to the court below to provide an opportunity to the 3rd defendant, to examine his Power of Attorney holder by Commission, preferably by the same Commissioner, who recorded the evidence of the other defendant. 2. Parties are directed to appear before the court below on 2.6.2009, on which, the learned Sub Judge shall fix the WPC.5886/09 4 date for examination of the Power of Attorney holder of the 3rd defendant through Commission. The learned counsel for the petitioners submitted the evidence of the 3rd defendant by Commission alone is required to be let in on behalf of the 2nd and 3rd defendants. Writ petition is disposed as indicated above. S.S.SATHEESACHANDRAN JUDGE prp S.S.SATHEESACHANDRAN, J. -------------------------------------------------------- CRL.R.P.NO. OF 2006 () --------------------------------------------------------- O R D E R --------------------------------------------------------- 23rd March, 2009