IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 15TH JANUARY 2009 / 25TH POUSHA 1930 WP(C).No. 34485 of 2007(E) ----------------------------------------- (I.A.NO.185/2007 IN O.S.35/1999, SUB COURT, THODUPUZHA) PETITIONER(S): ------------------------- BABU P.KURIAKOSE,S/O.KURIAKOSE, PALLATHUKUDY HOUSE, ADIMALY KARA, MANNAMKANDAM VILLAGE, DEVIKULAM TALUK. BY ADV. SRI.T.KRISHNANUNNI (SR.) RESPONDENT(S): --------------------------- 1. KATHIRESAN,12 ROOM LINES, MUNNAR, K.D.H.VILLAGE, DEVIKULAM TALUK, PIN 685 613. 2. NACHIAMMAL,W/O. KATHIRESAN, DO..DO.. 3. MATHUKUMAR,S/O.KATHIRESAN, DO..DO.. 4. RANGARAJAN,S/O.KATHIRESAN, DO..DO.. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.34485/2007 E APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF I.A.185/2007 FILED BY THE PLAINTIFFS IN O.S.35/1999 BEFORE SUB COURT, THODUPUZHA DTD. 14/03/2007. EXT.P2: COPY OF THE OBJECTION FILED BY THE CONTESTED DEFENDANTS IN THE ABOVE MATTER DTD. 12/09/2007. EXT.P3: COPY OF THE ORDER PASSED BY THE COURT OF THE SUBORDINATE JUDGE OF THODUPUZHA IN I.A.655/04 IN O.S.35/1999 DTD. 03/07/2004. EXT.P4: COPY OF THE ORDER OF THE COURT OF THE SUBORDINATE JUDGE OF THODUPUZHA IN I.A.185/2007 IN O.S.35/1999 DTD. 16/10/2007. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss HARUN-UL-RASHID, J. -------------------------------- W.P.(C) NO.34485 OF 2007 () ---------------------------------- Dated this the 15th day of January, 2009 J U D G M E N T The first plaintiff in O.S.No.35/1999 on the file of the Sub Court, Thodupuzha is the petitioner herein. His application to summon and examine Adv.Geetha Suresh Babu who is the third witness cited in the witness schedule was dismissed by the court below. The said order is under challenge. 2. Earlier plaintiffs filed I.A.No.655/2004 requesting the court to summon and examine the Advocate Commissioner who submitted the report in O.S.No.13/2001 on the file of the same court. It is submitted by the learned counsel that being an important piece of evidence the examination of the Advocate Commissioner is necessary. The learned counsel for the petitioner also submitted that before passing Exhibit P3 order, the court below discussed the pros and cons. The learned Judge gone into the merits of the legality of W.P.(C) No.34485/2007 - 2 - the evidentiary value of the commissioner's report and held that such a course is not now available. The court held that even if she is examined, the same will not serve the purpose for which she was sought to be examined. 3. The plaintiffs again filed I.A.No.185/2007 stating that the examination of the Advocate Commissioner is necessary for proper adjudication of the dispute. The petitioner has also pointed out that at the time when application was submitted, the address of the Advocate commissioner was not available to him. Therefore, he requested to adjourn the matter. But the court is unjustly declined the request of the plaintiff to summon and examine the Advocate Commissioner. In the present application, the petitioner averred that the Advocate Commissioner is now available for examination and therefore, he may be permitted to take steps to summon and examine the witness. W.P.(C) No.34485/2007 - 3 - 4. It is true that the evidence was closed, but the hearing was not so far done. The matter was got prolonged due to the same issue. That matter was not disposed of for the reason that the plaintiffs challenge Exhibit P3 order passed by the court below declining the request of the plaintiffs to summon and examine the Advocate Commissioner. This Court stayed the trial of the case and finally disposed of the writ petition by permitting the petitioner to produce certified copy of the Advocate Commissioner's report. Now the Advocate Commissioner's report is in the file. If the prayer and contentions are appreciated at the right time, the suit could have been disposed long time ago i.e., in the year 2005 itself. The prayer to summon the witness for the purpose of examination though belatedly done is necessitated due to the order passed by this Court in the writ petition allowing the plaintiffs to produce a certified copy of the report. So, I have no hesitation to order that the prayer of the plaintiffs to summon and examine Advocate Geetha Suresh Babu should have been allowed by the court below. W.P.(C) No.34485/2007 - 4 - 5. In the result, I set aside Exhibit P4 order. I.A.No.185/2007 is allowed. The court below shall take further steps to consider and dispose of the suit as early as possible, at any rate, within a period of six months from the date of receipt of a copy of this judgment. The writ petition is allowed as above. HARUN-UL-RASHID, JUDGE skr