IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 28TH FEBRUARY 2011 / 9TH PHALGUNA 1932 OP(C).No. 801 of 2011(O) ------------------------------------ PETITIONER --------------------- SOMAN, S/O.VATTAKKATTU V.R.ANANDHAN, ANANDHA BHAVANIL, KIZHATHIRIKARAYIL, EDIYANAR P.O., RAMAPURAM VILLAGE FROM KOCHUVELIYIL, CHERTHALA VADAKKU VILLAGE, VADAKKUM MURIYIL. BY ADV. SRI.G.GOPAKUMAR (CHERTHALA) RESPONDENT(S): -------------------------- 1. R.KAVIRAJ, S/O.RAVEENDRAN, RAVEENDRA SADANATHIL, BALARAMAPURAM, KOTTUKAL P.O., NEYYATTINKARA TALUK, FROM KOCHUVELIYIL, CHERTHALA VADAKKU VILLAGE, VADAKKUM MURIYIL 691 501. 2. R.KIRAN RAJ, S/O.RAVEENDRAN, OF --DO--, --DO-- R1 & R2 BY ADV.SRI.J. OMPRAKASH THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 28/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts K.T.SANKARAN, J. ------------------------------ O.P.(C)No.801 OF 2011 ------------------------------ Dated this the 28 th day of February, 2011 JUDGMENT The plaintiff in O.S.No.95 of 2007 on the file of the Court of the Subordinate Judge, Cherthala, challenges in this Original Petition, the order dated 16 th February, 2011 in I.A.No.186 of 2011, by which the court below dismissed the application to reopen the evidence. 2. It is submitted by the counsel on either side that the evidence on the side of the plaintiff as well as on the side of the defendant is over now. 3. The suit is filed for specific performance of an agreement for sale allegedly executed by Thankamany. Thankamany passed away. According to the plaintiff, the legal representatives of Thankamany are the defendants. In the written statement filed by the defendants, the execution of O.P.(C)No.801 OF 2011 2 the agreement was denied. The defendants also raised a contention that Thankamany's husband is also a legal heir and without impleading him as a defendant, the suit would be bad for non-joinder of necessary parties. 4. Though the contention of non-joinder of necessary parties was taken in the written statement, it would appear that no issue was raised by the court below on that contention. When the suit was taken up for trial, the learned Subordinate Judge felt that an issue should be raised on the plea of non-joinder of necessary parties. Accordingly, an additional issue was raised on 13.1.2011. 5. Thereafter, evidence was let in by the parties. The petitioner filed I.A.No.186 of 2011 to re-open the evidence. The court below dismissed that application on the ground that there is no case for the plaintiff that the defendants are O.P.(C)No.801 OF 2011 3 Marumakkathayees. The court below also stated in the order that there is an admission in the evidence that the husband of Thankamany is also a legal heir of Thankamany. 6. The learned counsel for the petitioner submitted that since the additional issue was raised, an opportunity should have been granted to adduce the necessary evidence on that aspect. The petitioner is not seeking to implead the husband of Thankamany as an additional defendant. On the other hand, what the petitioner says is that he should be given an opportunity to lead evidence and to produce documents to show that the husband of Thankamany is not a legal heir. The contention raised in the plaint is also that on the death of Thankamany, the defendants are the only legal heirs of Thankamany. No new contention is sought to be raised by the petitioner, submits the counsel. 7. In the facts and circumstances of the case, O.P.(C)No.801 OF 2011 4 I am of the view that evidence need not be shut out, particularly, when the additional issue was raised after the suit was listed for trial. The learned counsel for the petitioner submitted that the petitioner only wants to recall PW1 and to examine him and to produce a copy of a partition deed and other relevant documents. 8. I am of the view that an opportunity should be given to the petitioner to recall PW1 and to examine him and also to produce the documents referred to above. On such reopening of evidence and examination of PW1, the defendants would have a right to cross examine him. It would also be open to the defendants to produce counter documents or to adduce such other evidence in opposition to the evidence adduced by the plaintiff on reopening the evidence. The court below shall dispose of the suit expeditiously, after affording the parties an opportunity to adduce evidence in the manner indicated above. O.P.(C)No.801 OF 2011 5 The Original Petition is allowed and the order dated 16.2.2011 in I.A.No.186 of 2011 is set aside. I.A.No.186 of 2009 is allowed as indicated above. The learned counsel for the petitioner submitted that the petitioner would co-operate with the proceedings in the court and he would not seek adjournment. K.T.SANKARAN, JUDGE. cms