IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 4TH NOVEMBER 2011 / 13TH KARTHIKA 1933 OP(C).No. 3584 of 2011(O) ------------------------- OS.288/2011 of MUNSIFF COURT, KOTTARAKKARA ..................................... .................... PETITIONER: -------------------- ESWARI AMMA, AGED 93 YEARS, D/O.LAKSHMI AMMA, SREE MANDIRAM, KOTTARA MURI, POOYAPPALLY VILLAGE, KOTTARAKARA TALUK. BY ADV. SRI.P.I.DAVIS RESPONDENT(S): ------------------------ 1. SOMARAJAN PILLAI, AGED 72 YEARS, S/O.GOVINDA PILLAI, VADAKKUMKARA PUTHEN VEEDU, MARUTHAMAN PALLY MURI, POOYAPALLY VILLAGE, KOTTARAKARA TALUK, KOLLAM DISTRICT-691 001. 2. CHANDRAMATHY AMMA, AGED 69 YEARS, D/O.EASWARI AMMA, CHANDRAMAM, PALIKULANGARA, THIRUVANANTHAPURAM-695 001. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 04/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C).No. 3584 of 2011(O) APPENDIX PETITIONER'S EXHIBITS: P1 : COPY OF THE PLAINT IN O.S.288/2011 OF THE MUNSIFF'S COURT, KOTTARAKARA. P2 : COPY OF PETITION I.A.2086/11 IN O.S.288/2011 DTD 08/07/2011 OF THE MUNSIFF'S COURT, KOTTARAKARA. P3 : COPY OF THE COUNTER AFFIDAVIT FILED BY THE RESPONDENTS IN I.A.2086/2011 IN O.S.288/2011 OF THE MUNSIFF'S COURT, KOTTARAKARA. P4 : COPY OF I.A. 3488/2011 IN O.S. 288/2011 OF THE MUNSIFF'S COURT, KOTTARAKARA. P5 : COPY OF ORDER DTD 27/09/2011 IN I.S. 3488/2011 IN O.S. 288/2011 OF THE MUNSIFF'S COURT, KOTTARAKARA. P6 : COPY OF THE WRITTEN STATEMENT FILED BY THE PETITION IN O.S.288/2011. RESPONDENT'S EXHIBITS : NIL //TRUE COPY// P.A TO JUDGE. STU THOMAS P.JOSEPH, J. ==================================== O.P(C) No.3584 of 2011 ==================================== Dated this the 04th day of November, 2011 J U D G M E N T Petitioner is the first defendant in O.S. No.288 of 2011 of the court of learned Munsiff, Kottarakkara. That is a suit filed by the respondent to restrain petitioner and the second defendant from creating documents in respect of the suit property, inducting strangers into possession or committing waste therein. Respondents and second defendant are the children of petitioner. The suit property belonged to the husband of petitioner and father of respondents and the second defendant. On his death, it devolved on the petitioner, respondents and the second defendant. Petitioner filed I.A. No.2086 of 2011 (Ext.P2) claiming that she is mentally and physically well notwithstanding that she is 93 years old but it is necessary that her evidence is to be recorded at the earliest to convince the court of her mental and physical capacity and requesting that maintainability of the suit may be heard as a preliminary issue since petitioner has got half right in the property and hence she is entitled to create any document with respect to her right in the said property. Since that application (Ext.P2) was not taken up for hearing, petitioner filed O.P(C) No.3584 of 2011 -: 2 :- I.A. No.3488 of 2011 (Ext.P4) to advance hearing of Ext.P2, application. Exhibit P4, application was dismissed by the learned Munsiff by Ext.P5, order. Learned counsel contends that petitioner has already filed written statement (Ext.P6) taking up her defence in the suit, though she is 93 years old, she is mentally and physically well capable of taking decisions on her own and in that situation it is necessary that she is examined as a witness at the earliest. Learned counsel submits that Rule 10 of Order X of the Code of Civil Procedure enables the court to examine any party to the suit in the manner provided therein. Learned counsel also submits that the mental and physical condition of the petitioner is to be ascertained by the court. In the circumstances an early disposal of I.A. No.2086 of 2011 is required. 2. It would appear that petitioner and second defendant, her son have filed a joint written statement (Ext.P6). If preliminary steps are over, learned Sub Judge can certainly consider the feasibility of the case itself being posted for trial in the list having regard to the nature of the contentions raised, evidence required to be let in and that petitioner is aged about 93 years. Learned counsel submitted that the suit is now posted on O.P(C) No.3584 of 2011 -: 3 :- 29.02.2012. 3. Having regard to the age of petitioner and her apprehension about trial of suit being prolonged I am inclined to permit petitioner seek early hearing of the matter notwithstanding Ext.P5, order. If any such request is made by petitioner stating reasons for advancing hearing of the suit and I.A. No.2086 of 2011, learned Munsiff shall take into account the fact that petitioner is aged 93 years and pass appropriate orders in the matter. Learned Munsiff shall consider whether the suit itself could be disposed of as early as possible having regard to the nature of the contentions raised and the evidence required to be let in and the age of petitioner, of course after pre-trial steps are over. This Original petition is disposed of with the above observations. THOMAS P. JOSEPH, JUDGE. vsv