IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 18TH OCTOBER 2011 / 26TH ASWINA 1933 OP(C).No. 3062 of 2011(O) -------------------------------------- OS.330/2004 of ADDL.MUNSIFF COURT- II, KOZHIKODE. .................... PETITIONER: -------------------- EDAKKOTHMEETHAL ABID, S/O.MUHAMMED HAJI, KUTTIKKATTOOR VILLAGE, VELLIPARAMBA DESOM, KOZHIKODE TALUK REP.BY POWER OF ATTORNEY HOLDER ABDUL SAMAD, AGED 37 YEARS, S/O.MUHAMMED HAJI, EDAKKOTH MEETHAL, VELLIPARAMB POST, PIN-673 008, KUTTIKKATTOOR VILLAGE, KOZHIKODE TALUK. BY ADVS. SRI.N.M.MADHU SMT.C.S.RAJANI RESPONDENT(S): -------------------------- 1. LAKKIL POKKER, S/O.MOIDEEN, KUTTIKKATTOOR AMSOM DESOM, KOZHIKODE TALUK, PIN-673 008. 2. THIRUMANGALATH NASEER, S/O.ABU, KUTTIKKATTOOR AMSOM DESOM, KOZHIKODE TALUK, PIN-673 008. ADV. R1 BY ADV. SRI. JACOB ABRAHAM THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 18/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss OP(C) NO.3062/2011 APPENDIX PETITIONER(S) EXHIBITS EXHIBIT P1:-TRUE COPY OF THE POWER OF ATTORNEY DEED. EXHIBIT P2:-TRUE COPY OF THE PLAINT IN OS.330/2004 ON THE FILES OF THE ADDITIONAL MUNISIFF'S COURT II, KOZHIKODE. EXHIBIT P3:-TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE FIRST RESPONDENT. EXHIBIT P4:-TRUE COPY OF THE WITNESS LIST FILED BY THE PETITIONER. EXHIBIT P5:-TRUE COPY OF THE AFFIDAVIT FILED INSUPPORT OF THE I.A.NO.3543/2011. EXHIBIT P6:-TRUE COPY OF THE ORDER DATED 5/9/2011 IN IA.NO.3543/2011. EXHIBIT P7:-TRUE COPY OF THE ORDER DATED 5/9/2011 IN IA.3574/2011. RESPONDENTS' EXHIBITS NIL:- TRUE COPY P.A. TO JUDGE tss THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.3062 of 2011 -------------------------------------- Dated this the 18th day of October, 2011. JUDGMENT First respondent appears through counsel. 2. In the course of trial of the suit, petitioner/plaintiff requested learned Additional Munsiff-II, Kozhikode to issue summons to one of his witnesses. He also filed an application to condone the delay in filing the witness schedule. The request was rejected by the learned Munsiff by Exts.P6 and P7, orders dated 05.09.2011. 3. Petitioner, alleging that 1st respondent is a licensee of the suit property as per a document executed between him and the vendor of petitioner and that the 1st respondent, against the terms and conditions of the license agreement transferred possession of the property to the 2nd respondent, wanted a decree for mandatory injunction to direct respondents vacate the suit property and filed O.S.No.330 of 2004 before learned Additional Munsiff-II, Kozhikode. 1st respondent contended that he is holding the property as a licensee under the prior owner of the property, one Sankaran Namboodiri as per an oral lease. The suit was listed for trial on 01.09.2011. Petitioner submitted the witness list on 31.08.2011 and on 03.09.2011 filed I.A.3543 of 2011 to receive the witness list on condoning the delay. Learned Munsiff passed Ext.P6, order stating that the suit is of the year, 2004, sufficient opportunity was given to the petitioner to OP(C)No.3062/2011 2 take steps, it was not availed and no purpose will be served by issuing summons to the witness as petitioner is not ready to take out summons by hand. Learned Munsiff went to the extent of presuming that even if examined, the witness for petitioner may not depose in favour of petitioner and that is why petitioner has not taken the summons by hand. Exts.P6 and P7, orders are under challenge. 4. Assuming that the witness list was filed a bit belatedly, the request to condone the delay could have been allowed if necessary by directing petitioner pay cost to the contesting respondents. Instead, learned Munsiff has gone into certain conclusions that the witness if examined would not depose in favour of petitioner and that is why petitioner has refused to take summons by hand, delay is not explained and hence the application is liable to be rejected. I am inclined to think that if there was some delay on the part of petitioner, the application could have been allowed on terms of cost and summons issued to the witness in which case by now, the suit could have been disposed of. The ultimate result of Exts.P6 and P7, orders, it appears to me is only prolonging disposal of the suit. 5. I do not find reason why the witness list of petitioner should not be received and summons shall not be issued to the witness of petitioner. Petitioner must be given an opportunity to adduce evidence as he has requested for. Resultantly this Original Petition is allowed. Exts.P6 and P7, orders are OP(C)No.3062/2011 3 set aside. I.A.Nos.3543 of 2011 and 3574 of 2011 in O.S.No.330 of 2004 of the court of learned Additional Munsiff-II, Kozhikode shall stand allowed. Learned Munsiff shall issue summons to the witness for petitioner and give petitioner opportunity to examine him on his side. Learned Munsiff shall expedite trial and disposal of the suit. THOMAS P.JOSEPH, Judge. cks