IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 19TH OCTOBER 2010 / 27TH ASWINA 1932 WP(C).NO. 21317 OF 2010(O) ------------------------------------------ AGAINST THE JUDGEMENT/ORDER IN TPC.193/2010 OS.8/1997 OF SUB COURT,KATTAPPANA .................... PETITIONER(S): PETITIONER ----------------------------------------- 1. MAYADEVI MITTAL, AGED 39, W/O.SUNIL KUMAR MITTAL, C.C.NO.8/2357, NEW ROAD(GUJARATHI ROAD)KOCHI-2 2. VARSHA GUPTA AGED 38, W/O.PRAKASH GUPTA C.C.NO.8/2357,NEW ROAD (GUJARATHI ROAD)KOCHI-2. BY ADV. SRI.B.RAMACHANDRAN SMT.M.CHANDRALEKHA RESPONDENT(S): ----------------------- 1. ABRAHAM,S/O.CHACKO,VAIOTHIL HOUSE, KULAPPARACHAL KARAYIL,RAJAKKADU VILLAGE, UDUMBANCHOLA IDUKKI. 2. ELEMMA, W/O.ABRAHAM, VAIOTHIL HOUSE,KULAPPARACHAL KARAYIL, RAJAKKADU VILLAGE, UDUMBANCHOLA, IDUKKI. BY ADVOCATE SMT.SHAMEENA SALAHUDHEEN R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX --------------- PETITIONER'S EXHIBITS: --------------------------------- EXHIBIT P1 A TRUE COPY OF PLAINT DATED 10.1.1997. EXHIBIT P2 A TRUE COPY OF JUDGMENT DATED 30.6.1999 IN O.S. NO.8 OF 1997. EXHIBIT P3 A TRUE COPY OF JUDGMENT DATED 15.1.2010 IN A.S. NO.722 OF 1999. EXHIBIT P4 A TRUE COPY OF JUDGMENT DATED 3.6.2010 IN I.A. NO.632 OF 2010 IN O.S. NO.8 OF 1997. EXHIBIT P5 A TRUE COPY OF MEDICAL CERTIFICATE DATED 3.4.2010 ISSUED TO P.D. GUPTA. EXHIBIT P6 A TRUE COPY OF MEDICAL CERTIFICATE ISSUED TO THE SECOND PETITIONER DATED 24.6.2010. RESPONDENT'S EXHIBITS: ----------------------------------- NIL TRUE COPY THOMAS P.JOSEPH, J. ==================================== W.P(C) No.21317 of 2010 ==================================== Dated this the 19th day of October, 2010 J U D G M E N T Respondents though served, remains absent. Heard learned counsel for petitioners. 2. Petitioners are the plaintiffs in O.S. No.8 of 1997 of the court of learned Sub Judge, Kattappana. Prayer was to examine witnesses for the plaintiffs on commission at Ernakulam with the assistance of a Hindi-English Translator as the witnesses are not able to understand or depose in Malayalam. According to the learned counsel P.W.1 (who is examined in part) and all other witnesses are ill and unable to go to Kattappana to give evidence. It is stated that P.W.1 who was examined in part is now on wheelchair. Petitioners have produced Exts.P5 and P6, medical certificates concerning P.W.1 and plaintiff No.2. It is seen that those medical certificates were not produced before the learned Sub Judge. Learned counsel states that there was no written objection preferred by the respondents and that is why the medical certificates were not produced before learned Sub Judge. It is seen from the order under challenge that application was opposed W.P(C) No.21317 of 2010 -: 2 :- by the respondents-defendants. Since learned Sub Judge did not get opportunity to peruse the medical certificates it is only proper that the matter is send back to the learned Sub Judge for fresh consideration and decision. If as petitioners say as P.W.1 is on wheelchair that is a matter which learned Sub Judge has to consider sympathetically. Hence Ext.P4, order cannot be sustained and is liable to be set aside. Resultantly, this Writ Petition is allowed. Exhibit P4, order is set aside and I.A. No.632 of 2010 is remitted to the court of learned Sub Judge, Kattappana for fresh decision after giving both sides opportunity to adduce evidence. It will be open to the petitioners to produce the medical certificates before the learned Sub Judge. Learned Sub Judge shall pass appropriate orders on I.A. No.632 of 2010 as early as possible. THOMAS P. JOSEPH, JUDGE. vsv