IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 2ND NOVEMBER 2009 / 11TH KARTHIKA 1931 WP(C).No. 13645 of 2009(O) -------------------------------------- PETITIONER(S): ----------------------- MOHAMMED PATHUMMAL, THENGUVILA VEEDU, PALACHIRA, CHERUNNIYOOR VILLAGE, VARKALA. BY ADV. MR.B.S.SWATHY KUMAR RESPONDENT(S): ------------------------ NABEESATHU BEEVI, THENGUVILA VEEDU, PALACHIRA, CHERUNNIYOOR VILLAGE, VARKALA. ADV. MR.R.ANILKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.13645/2009 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE AFFIDAVIT AND IA. NO.298/2009 IN OS. 155/07 BEFORE THE MUNSIFF COURT, VARKALA DT. 3.2.09. P2:- COPY OF THE MEDICAL CERTIFICATE ISSUED BY KERALA INSTITUTE OF MEDICAL SCIENCE. P3:- COPY OF THE ORDER TAKEN DOWN BY HAND IN IA. 298/2009 IN OS. 155/07 OF THE MUNSIFF COURT, VARKALA. P4:- COPY OF THE REVIEW PETITION NO.IA. 590/2009 IN OS. 155/07 BEFORE THE MUNSIFF COURT, VARKALA DTD. 7.3.09. P5:- COPY OF THE MEDICAL CERTIFICATE ISSUED BY KERALA INSTITUTE OF MEDICAL SCIENCE DTD. 6.3.09. P6:- COPY OF THE ORDER IN IA. 590/09 IN OS. 155/07 OF THE MUNSIFF COURT, VARKALA DTD. 25.3.09. TRUE COPY P.A. TO JUDGE tss S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.13645 of 2009 - O --------------------------------- Dated this the 2nd day of November, 2009 J U D G M E N T Writ petition is filed by the first defendant in O.S.No.155 of 2007 on the file of the Munsiff Court, Varkala. Suit is one for partition, and, the respondent the plaintiff. Resisting the suit claim petitioner/first defendant had set up a counter claim for cancellation of a settlement deed on the basis of which share over the property was claimed by the plaintiff as the widow of one of the sons of the first defendant. Evidence of the plaintiff is already over. An application moved by the petitioner/first defendant for her examination by commission was allowed by the court directing to have such examination at the bar association hall. A review petition filed that she is so infirm and incapacitated being aged 89 years old, was negatived by the learned Munsiff. Challenging Ext.P6 order passed on the review petition, petitioner has filed this writ petition seeking issue of a writ, direction or order to the court below to permit her examination at her house. 2. I heard the counsel on both sides. 3. Though petitioner had canvassed a case that she was bed ridden and thus incapable of appearing before the court to have her examination by commission the records produced by her W.P.(C).No.13645 of 2009 - O 2 showed of her going over to a hospital and also to the advocate office for subscribing to the affidavit filed to seek her examination by commission. It appears the above circumstances prompted the court below to hold that she is sufficiently healthy to present herself at the bar association hall for recording her evidence by commission. Whatever that be, the age of the petitioner, i.e., 89 years old, should have been given due consideration and weightage by the court. At the time of hearing counsel on both sides agreed that she can make herself available at the advocate office of her counsel and she can be examined at that place on a fixed date, mutually agreed upon by the parties, subject to the convenience of the advocate commissioner. It is ordered that her examination shall be conducted at the office of her advocate, within a period of three weeks from the date of receipt of a copy of this judgment. Writ petition is disposed as indicated above. Send a copy of the judgment to the court concerned forthwith. S.S.SATHEESACHANDRAN, JUDGE. bkn/-