IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 22ND SEPTEMBER 2011 / 31ST BHADRA 1933 OP(C).No. 3042 of 2011(O) ------------------------- IA NO.1188/2011 IN OS.169/2009 of SUB COURT,NEYYATTINKARA .................... PETITIONER (S): ------------------------------ VIJAYAKUMARAN NAIR, S/O.GANGADHARAN THAMPI, THATTANVILAKATHU VEEDU, ARAYOOR, MARIYAPURAM, NEYYATTINKARA. BY ADV. SRI.V.SURESH SRI.G.SUDHEER RESPONDENT(S): --------------- YOVEL PONNUMANI, UDIYANNOORVILA VEEDU, KULAPPURAM DESOM, KULAPPURAM VILLAGE, VILAVANCODE TALUK, KK DISTRICT-695001. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 22/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C)NO.3042/2011 APPENDIX PETITIONER(S) EXHIBITS EXHIBIT-P1. TRUE COPY OF THE PLAINT O.S.NO.169/2009 FILED BY THE RESPONDENT BEFORE THE MUNSIFF'S COURT, NEYYATTINKARA DATED 17.7.2009. EXHIBIT-P2. TRUE COPY OF THE WRITTEN STATEMENT IN O.S.NO.169/2009 FILED BY THE PETITIONER BEFORE THE MUNSIFF COURT, NEYYTTINKARA, DATED 18.1.2010. EXHIBIT-P3. TRUE COPY OF THE AGREEMENT DATED 2.6.2008 EXECUTED BETWEEN PETITIONER AND RESPONDENT. EXHIBIT-P4. TRUE COPY OF THE PETITION I.A.NO.1188/2011 IN O.S.NO.169/2009 FILED BY THE PETITIONER BEFORE THE SUB COURT, NEYYATTINKARA DATED 30.6.2011. EXHIBIT-P5. TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENT IN OS.NO.169/2009 DATED 7.7.2011. EXHIBIT-P6. TRUE COPY OF THE ORDER DATED 4.8.2011 IN I.A.NO.1188/2011 IN O.S.NO.169/2009 OF THE SUB COURT, NEYYATTINKARA. RESPONDENTS' EXHIBITS: NIL //TRUE COPY// THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.3042 of 2011 -------------------------------------- Dated this the 22nd day of September, 2011. JUDGMENT 1st defendant in O.S.No.169 of 2009 of the court of learned Sub Judge, Neyyattinkara is the petitioner before me challenging Ext.P6, order refusing to send Ext.P3, agreement to the expert for opinion. Respondent filed the suit against petitioner for return of advance money as per Ext.P3, agreement dated 02.06.2008 allegedly executed by petitioner. Petitioner denied execution of the agreement and came with Ext.P4, application to send the document to the expert for opinion. That application was dismissed by Ext.P6, order. 2. Learned counsel contended that there is substantial variance between the admitted signature of petitioner and the disputed signature in Ext.P3, agreement and in the circumstance the document ought to have been sent to the expert for opinion. It is also submitted that observation made by the learned Sub Judge that Ext.P4, application is belated is not correct. 3. It is seen from Ext.P6, order that the suit was filed on 18.07.2009 and petitioner was set exparte on 25.11.2009. That order was set aside on 01.06.2010 and thereafter the case was posted on 07.09.2010, 05.01.2011 and 17.06.2011 for steps. No steps were taken and hence on 17.06.2011 the case was posted for trial in the special list on 13.10.2011. On 07.07.2011 petitioner filed Ext.P4, application with a request to advance hearing OP(C)No.3042/2011 2 of the case. Learned Sub Judge observed that though not exactly the amount claimed in the plaint, petitioner has admitted liability to the respondent in I.P. (O.P.)No.7 of 2008, that Ext.P4, application is belated and the request cannot be allowed. 4. If petitioner has denied the execution of Ext.P3, agreement, the initial burden of proving its due execution is on the respondent. I must also bear in mind that Ext.P4, application was filed after the case was posted for trial in the special list. In that view of the matter I do not find reason to interfere with the impugned order. But, I make it clear that notwithstanding this judgment, it is open to the petitioner to challenge correctness of Ext.P6, order in an appeal that may be preferred against the judgment and decree in the suit. With the above observation this Original Petition is dismissed. THOMAS P.JOSEPH, Judge. cks