IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 19TH MARCH 2009 / 28TH PHALGUNA 1930 WP(C).No. 7832 of 2009(O) AGAINST THE ORDER IN IA.536/09 IN OS.325/2006 OF MUNSIFF'S COURT.,PARAPPANANGADI PETITIONER: --------------- MOHAMMED ASHRAF, S/O.OKOYISSAN KUNHEEN, VENGARA AMSOM, KUTTOOR DESOM,TIRURANGADI TALUK, MALAPPURAM DISTRICT. BY ADV. SRI.C.M.MOHAMMED IQUABAL RESPONDENT: --------------- KADER HAJI, S/O.KOYA HAJI, KAITHAVALAPPIL, VENGARA AMSOM, KUTTOOR DESOM, POST KUTTOOR NORTH, TIRURANGADI TALUK, MALAPPURAM DISTRICT. ADV. SRI.K.P.SUDHEER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ W.P.(C) NO. 7832 OF 2009 O ------------------------------------------------------ Dated this the 19th March, 2009 JUDGMENT The second plaintiff in O.S.No.325 of 2006, on the file of the Court of the Munsiff of Parappanangadi, is the petitioner. The suit was filed by the petitioner and his brother and sisters for a permanent prohibitory injunction restraining the defendant from causing obstruction to the user of the plaint schedule way. Temporary injunction was granted in favour of the plaintiffs. The suit was listed for trial in February, 2009. At that time, the petitioner/second plaintiff filed I.A.No.309 of 2009 to remove the suit from the ready list. It is stated in Ext.P5 affidavit in support of the application that he is suffering from heart ailments; that the other plaintiffs are not conversant with the facts of the case; the second plaintiff was conducting the case for and on behalf of the other plaintiffs and that some time is required to study the case and to get ready for evidence. The suit was removed from the list, accepting the request of the petitioner, on payment of a costs of Rs.1,000/-. The petitioner paid the costs. The suit was again listed for trial in the month of March, 2009. At that time, petitioner filed I.A.No.536 of 2009 supported by Ext.P6 affidavit dated 2.3.2009. In Ext.P6 affidavit, it is stated that the petitioner is not cured of the illness and that the Doctors have advised him to take rest. It is stated that, therefore, he is not in a position to appear before Court and to W.P.(C) NO.7832 OF 2009 :: 2 :: adduce evidence. The court below considered I.A.No.536 of 2009 and passed an order dated 5.3.2009. The order dated 5.3.2009 is not produced. It is stated that though the petitioner applied for a copy of the order, he has not received the same. Only gist of the order passed on 5.3.2009 is mentioned in the Writ Petition. It is stated that the court below appointed an experienced Commissioner to examine the plaintiff and held that there is no ground to remove the case from the list. It is also stated in the Writ Petition that the case was posted to 10.3.2009. Since there was no sitting on 10.3.2009, the case was adjourned to 11.3.2009. The Writ Petition was filed on 11.3.2009. An interim stay of examination of the petitioner by the Commissioner was granted on 12.3.2009. 2. The respondent appeared. A counter affidavit is filed by the respondent. In the counter affidavit, he has denied the various averments in the Writ Petition. The averment that the petitioner alone knows the facts of the case and that his evidence is required in the case as others are not aware of the facts is disputed by the respondent. In support of that contention, the respondent has produced two affidavits dated 13.12.2006 sworn to by the first plaintiff in support of the application for temporary injunction and the application for appointment of a Commissioner. W.P.(C) NO.7832 OF 2009 :: 3 :: 3. I have gone through the various averments in the affidavits filed by the first plaintiff in support of those applications (produced by the respondent as Exts.R1(a) and R1(b)). The averments in those affidavits would indicate that the first plaintiff was fully aware of the facts of the case. He was aged 42 in 2006. The affidavits are sworn to in English and various facts have been stated in the affidavit. On a reading of those affidavits, the contention of the petitioner that no other plaintiff is aware of the facts of the case, cannot be accepted. Since the very foundation of the case built up by the petitioner goes on a perusal of Exts.R1(a) and R1 (b) affidavits sworn to by the first plaintiff, I am not inclined to grant any relief to the petitioner. 4. To a query by the Court, learned counsel appearing for the respondent submitted that the respondent/defendant has no objection for any of the plaintiffs being examined by the Commissioner appointed by the Court. Therefore, the Writ Petition is disposed of with the following directions: W.P.(C) NO.7832 OF 2009 :: 4 :: a) The Commissioner appointed by the Court may examine the second plaintiff, if he is willing to adduce evidence. If he is not willing to adduce evidence or his health does not permit him to be examined and cross examined, the Commissioner need not examine him. b) If any other plaintiff offers to give evidence before the Commissioner, the Commissioner may record the evidence of any of those plaintiffs. c) The Commissioner shall return the evidence as early as possible before the trial court. (K.T.SANKARAN) Judge ahz/