IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN THURSDAY, THE 15TH JANUARY 2009 / 25TH POUSHA 1930 WP(C).No.1146 of 2009 (J) -------------------------------- CMA.88/2008 of II ADDL. DISTRICT COURT, PALAKKAD OS.78/2007 of MUNSIFF COURT, CHITTUR .................... PETITIONERS: ---------------- 1. P. PONNU MANNADIAR, AGED 62 YEARS, S/O. MUTHUKUTTY AMMA, POOKKOT VEEDU, VITHANASSERY, VALLANGHI AMSOM, CHITTUR, PALAKKAD. 2. P. KUMARANKUTTY MANNADIARY, AGED 69 YEARS, S/O. VISALAKSHI AMMA, DEVI NIVAS, VITHANASSERY, VALLANGHI AMSOM, CHITTUR, PALAKKAD. 3. SADASIVAKUMAR, AGED 53 YEARS, S/O. KALAYANIKUTTY AMMA, VASNATHNIVAS, VITHANASSERY, VALLANGHI AMSOM, CHITTUR, PALAKKAD. 4. VIJAYAKUMAR, AGED 54 YEARS, S/O. P. LAKSHMIDEVI AMMA, POOKKOT VEEDU, VITHANASSERY, VALLANGHI AMSOM, CHITTUR, PALAKKAD. 5. P. PRAKASH, AGED 44 YEARS, S/O. N. UNNI MENON, POOKKOT VEEDU, VITHANASSERY, VALLANGHI AMSOM, CHITTUR PALAKKAD. 6. K. VINODKUMAR, AGED 42 YEARS, S/O. PARAKKAT RAJAGANGADHARA MENON, PARAKKAT HOUSE, VITHANASSERY, VALLANGHI AMSOM, CHITTUR PALAKKAD. WP(C).No.1146 of 2009 (J) -2- 7. M.P. MADHUSOODHANAN, AGED 43 YEARS, S/O. KUMARAN MANNADIAR, POOKKOT DEVI NIVAS, VITHANASSERY, VALLANGHI AMSOM CHITTUR PALAKKAD. 8. M.P. RAMUNNI, AGED 59 YEARS, S/O. P.KAMALAM AMMA, POOKKOT VEEDU, VITHANASSERY, VALLANGHI AMSOM, CHITTUR PALAKKAD. 9. PADMANABHANUNNI, AGED 52 YEARS, S/O. P.NAGARATHA, POOKKOT VEETTIL, VITHANASSERY, VALLANGHI AMSOM, CHITTUR, PALAKKAD. 10. P. RAGINI, AGED 45 YEARS, D/O. P. KALYANIKUTTY, POOKKOT. VITHANASSERY, VALLANGHI AMSOM , CHITTUR, PALAKKAD. 11. P.S. NATH MENON, AGED 70 YEARS, S/O. POOKKOT NARAYANA MANNADIAR, PARAKKATH HOUSE, VITHANASSERY, VALLANGHI AMSOM, CHITTUR PALAKKAD. 12. RADHAKRISHNAN, P. AGED 68 YEARS, S/O. KONDOTT SEKHARAN NAIR, POOKKOT HOUSE, VITHANASSERY VALLANGHI AMSOM, CHITTUR PALAKKAD. 13. P.BALAKRISHNAN, AGED 72 YEARS, S/O. KUNHUNNI MENON, MANIMANDIRAM, VITHANASSERY VALLANGHI AMSOM, CHITTUR PALAKKAD. 14. N.N.SIVADASAM, AGED 60 YEARS, S/O.C.S. NAIR, POOKKOT HOUSE, VITHANASSERY,VALLANGHI AMSOM, CHITTUR , PALAKAD. 15. KRISHNAPRASAD, AGED 48 YEARS, S/O. JANAKI AMMA, POOKKOT HOUSE, VITHANASSERY, VALLANGHI AMSOM, CHITTUR PALAKKAD. 16. OMANA AMMA, AGED 68 YEARS, D/O. MATHU AMMA, POOKKOT HOUSE, VITHANASSERY, VALLANGHI AMSOM, CHITTUR PALAKKAD. WP(C).No.1146 of 2009 (J) -3- 17. VITHANASSERY POOKKOT THARAVAD DEVASWOM TRUST, POOKKOT THARAVAD, VITHANASSERY, VELLANGHI AMSOM, CHITTUR TALUK, PALAKKAD, REPRESENTED BY ITS SECRETARY. BY ADV. SRI.N.RAGHURAJ SMT.K.AMMINIKUTTY RESPONDENT: --------------- P.SUDHESH CHANDRAN, AGED 38 YEARS, S/O. CHANDRAKANTH, SARALAMANDIRAM, VITHANASSERY, VALLANGHI AMSOM, CHITTUR PALAKKAD. ADV. SRI.B.PREMNATH (E) FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.1146 of 2009 (J) -4- APPENDIX PETITIONER'S EXTS:- EXT.P1:- TRUE PHOTOCOPY OF THE PLAINT IN O.S. NO.78/07 EXT.P2:- TRUE PHOTOCOPY OF THE STATEMENT FILED BY THE PETITIONERS HEREIN IN O.S. NO.78/07. EXT.P2(a):- TRUE COPY OF THE STATEMENT FILED BY THE PETITIONERS HEREIN IN O.S. NO.78/07. EXT.P3:- TRUE PHOTOCOPY OF THE I.A. FILED BY THE PETITIONERS ON 07/07/08. EXT.P4:- TRUE PHOTOCOPY OF THE ORDER PASSED BY THE LEARNED MUNSIFF COURT, CHITTOR IN I.A. NO.1420/08 IN O.S. NO.78 OF 2007 ON 19/07/08. EXT.P5:- TRUE PHOTOCOPY OF THE JUDGMENT DT.25/10/08 IN CMA.88/08. .................. K.P.BALACHANDRAN, J. ------------------------------------------------ W. P. C. No.1146 of 2009 ------------------------------------------------ Dated this the 15th day of January, 2009 JUDGMENT The petitioners are the defendants in a suit filed by the respondent before the Munsiff's Court, Chittur as O.S.78/07. The prayer in the said suit, it is submitted, is inter alia for issuance of a permanent prohibitory injunction restraining the defendants in the suit including the petitioners herein from interfering with the management of plaint 'B' schedule temple. The respondent alleged that defendants 1 to 25 in the suit including the petitioners herein formed a trust namely Vithanassery Pookkot Tharavad Devaswom Trust which is impleaded as the 26th defendant in the suit for the management of the temple, but that was without the consent of all members of the Pookkot W. P. C. No.1146 of 2009 -2- tharavad and not in accordance with the custom followed in the matter of management of the said temple. 2. The petitioners/defendants filed written statement in the said suit resisting the reliefs prayed for in the suit contending that all the members of the Pookkot Tharavad including the respondent/plaintiff were given notice of the general body meeting of the members of the Pookkot Tharavad held on 19/06/05 and the 26th defendant/trust was formed as per the unanimous decision of the said general body and that the respondent who had notice of the above said meeting did not participate in the meeting though however, he did not raise any objection against the decision to form the Trust thereafter and that therefore, the respondent/plaintiff is not entitled to maintain the suit as the W. P. C. No.1146 of 2009 -3- management of the Temple was entrusted with the said Trust. According to counsel for the petitioners, they did produce along with the written statement filed on 27/09/07 Ext.B4 note book whereunder notice was served on all the members of the Tharvad including the respondent/plaintiff and that Ext.P4(a) entry therein shows that the respondent/plaintiff has acknowledged receipt of the said notice. 3. It is submitted by the counsel for the petitioner that the plaintiff was examined as PW1 on 06/07/08 and then for the first time he denied Ext.B4(a) entry in Ext.B4 note book as being not his signature and it was therefore, that on the very next day namely on 07/07/08 the petitioners filed Ext.P3 application praying for the signature in Ext.B4(a) being got examined by a handwriting expert in comparison with his admitted signatures, but W. P. C. No.1146 of 2009 -4- that the court below has vide Ext.P4 impugned order disallowed the request and dismissed Ext.P3 petition; that on wrong legal advice C.M.A.88/08 was filed assailing Ext.P4 order, but by Ext.P5 judgment the first appellate court has dismissed the appeal as not maintainable and hence, this Writ Petition assailing Ext.P4 order. 4. The learned counsel for the petitioners has produced before me a copy of the deposition of the respondent when examined as PW1 which shows that he has denied Ext.B4 (a) entry in Ext.B4 note book as bearing his signature though he stated that he is unable to say what exactly is the difference in his signature in Ext.B4(a) and in Ext.B2 and however, that he has no objection in forwarding it to the handwriting expert for opinion. W. P. C. No.1146 of 2009 -5- 5. Counsel for the respondent has no case that the signature in Ext.B4(a) entry was denied by the respondent/plaintiff at any point of time ever after filing of the written statement till it was denied on 06/07/08 when plaintiff was examined as PW1 though the written statement was filed as early as on 27/09/07 and that no replication also has been filed disputing the authenticity of Ext.B4 note book though the said note book was produced along with the written statement and the fact had been disclosed also in the written statement which was filed with notice to the respondent/plaintiff. It cannot therefore, be said that the petitioners did have opportunity at any earlier point of time to move a petition of the nature of Ext.P3 seeking for expert opinion as regards the signature in Ext.B4(a) entry to ascertain W. P. C. No.1146 of 2009 -6- whether it is actually the signature of the respondent/plaintiff. It was therefore, only proper that the court below should have allowed the application and forwarded Ext.B4 (a) entry in Ext.B4 note book for being examined by a handwriting expert in comparison with the admitted signatures of the respondent /plaintiff at around the same period so as to have its authenticity or otherwise established. 6. In the result, I set aside Ext.P4 order and remit Ext.P3 application (I.A.1420/08) to the court below. The court below shall do the needful to have the expert opinion obtained as prayed for in Ext.P3 application. 7. This Writ Petition is disposed of with the above directions. Counsel on both sides shall be at liberty to produce a copy of this W. P. C. No.1146 of 2009 -7- judgment in the court below to enable the court to comply with the directions issued herein. 8. Issue copy of this judgment to the counsel on both sides urgently. K.P.BALACHANDRAN, JUDGE kns/-