IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 2ND DECEMBER 2010 / 11TH AGRAHAYANA 1932 OP(C).No. 973 of 2010(O) ------------------------ OS.381/2002 of ADDL.SUB COURT,KOTTAYAM .................... PETITIONER:- ------------------ K.G.SUNIL DUTH,S/O.LATE K.C.GANGADHARAN, KOMMADATH HOUSE,UDAYA ROAD,THYKOODAM, COCHIN-68019. BY ADV. SRI.T.M.ABDUL LATHEEF RESPONDENTS:- --------------------- 1. REV.FR.K.P.VARGHESE @ REV.FR.GEEVARGHESE KOLLASERRIL,S/O.PHILIPOSE VARGHESE, KOLLASSERIL HOUSE,VELLOOR.P.O,PAMPADY,KOTTAYAM. NOW RESIDING AT 303,B-JALARAM PALACE,BHATTER ROAD, NEAR ANKUR APARTMENT,SURAT,GUJARAT-395001. 2. LEELAMMA VARGHESE,W/O.REV.FR.GEEVARGHESE KOLLASSERIL,KOLLASSERIL HOUSE,VELLOOR.P.O,PAMPADY, KOTTAYAM,NOW RESIDING AT 303,B-JALARAM PALACE, BHATTER ROAD,NEAR ANKUR APARTMENT,SURAT, GUJARAT-395001. 3. DENNIS VARGHESE,REG.FR.GEEVARGHESE KOLLASSERIL,KOLLESSERIL HOUSE,VELLOOR.P.O,PAMPADY, KOTTAYAM,NOW RESIDING AT 303,B-JALARAM PALACE, BHATTER ROAD,NEAR ANKUR APARTMENT,SURAT, GUJARAT-395001. BY ADV.SHRI.M.P.MADHAVAN KUTTY. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 02/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. = = = = = = = = = = = = = = OP(C).No.973 of 2010-O. = = = = = = = = = = = = = = Dated this the 2nd day of December, 2010. J U D G M E N T Plaintiff in OS.No.372/2005 of the Court of learned Sub Judge, Kottayam is the petitioner before me seeking sufficient opportunity and time to adduce evidence in OS.Nos.381/2002 and 372/2005 being tried by learned Sub Judge jointly. The matter had come up before a Division Bench of this Court in the form of FAO.No.282/2009. Division Bench of this Court as per judgment dated November 02, 2010 issued certain directions in the matter of disposal of that case. Learned Sub Judge was directed that once the suit is listed for trial, trial shall be taken up on a day to day basis and that the suit is to be disposed of within a month from commencement of trial. That however did not happen. While so, petitioner approached this Court with OP(C).No.476/2010 with a request to depute the expert OP(C).No.973/2010-O. 2 commission (Pw5) to inspect the construction once again and note, what the petitioner said certain deficiencies in his report. That writ petition was disposed by me by judgment dated November 02, 2010 after hearing counsel on both sides and certain directions were issued to the learned Sub Judge in the matter of calling for further report through the expert. This Court directed that the expert (who was latter examined as Pw5) could be examined in court and if in the course of evidence petitioner brings out that any work actually done by him was not ascertained and measured by the expert, it will be open to the petitioner to request learned Sub Judge to depute the same expert commissioner to ascertain, measure and report on such work as has been left out from consideration by the expert commissioner. The expert commissioner was examined as Pw5 on the side of the respondents. According to the petitioner, he was able to successfully bring out deficiencies in the report of the expert and hence filed Ext.P5, application to depute Pw5 OP(C).No.973/2010-O. 3 again to report on such deficiencies. That application is pending consideration before learned Sub Judge. Now, petitioner wanted to examine one Santhosh John, the Architect who prepared plan of the building in dispute. Summons was taken to that witness and attempted to be served on the morning of 25.11.2010. But the summons was returned with endorsement that the witness left for Gulf on that day and would return only on 14.12.2010. Petitioner, on 26.11.2010 applied to the learned Sub Judge to adjourn the case to a day after 14.12.2010 since according to the petitioner, the only other witness to be examined on his side was the said Santhosh John who would be available only after 14.12.2010. Case was posted to 27.11.2010 with a direction to the petitioner to examine his witness, if any. Petitioner was not able to examine the said Santhosh John since he was expected to return to the country only on 14.12.2010. Petitioner, therefore has approached this Court with the prayer stated above. OP(C).No.973/2010-O. 4 Learned counsel stated that though the Division Bench has directed day-to-day trial of the case and its disposal is within one month from the day of trial, in the light of direction issued by this Court, petitioner is entitled to get Pw5 deputed again and to cure the defect in his report. It is also stated by learned counsel that examination of Santhosh John on the side of petitioner is essential. Learned counsel submitted that this is a case where both sides have claimed few lakhs of rupees from the opposite side and that the case may not be closed without giving opportunity to adduce evidence. Sri.M.P.Madhavan Kutty, learned counsel for respondents contended that if as a matter of fact petitioner was vigilant, he could have learnt that Santhosh John would be available in the country only after 14.12.2010, in which case he could move the court to examine the witness even before other witnesses were examined. Such course was not adopted by petitioner with the object of protracting trial of the case. OP(C).No.973/2010-O. 5 2. Having regard to the facts and circumstances of the case, I am inclined to give opportunity to the petitioner to examine Santhosh John after his arrival on 14.12.2010. Learned counsel for petitioner submitted that apart from Santhosh John, and further examination of Pw5 after he submitted additional report as called for in Ext.P5 application, petitioner has no other witness to be examined. That submission of the learned counsel is recorded. In the result, this petition is disposed of in the following lines: (i) Learned Sub Judge is directed to give opportunity to the petitioner to examine Santhosh John on his side by posting the case after 14.12.2010. (ii) Learned Sub Judge shall dispose of Ext.P5 application as provided under law and in the light of judgment in OP(C)No.476/2010 after hearing counsel on both sides. OP(C).No.973/2010-O. 6 (iii) Learned Sub Judge shall address the Division Bench which disposed of FAO.No.282/2009 and request for extension of time in the light of the above development. THOMAS P. JOSEPH, (Judge) Kvs/-