IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN TUESDAY, THE 20TH JANUARY 2009 / 30TH POUSHA 1930 WP(C).No.1173 of 2009 (M) --------------------------------- OS.479/2004 of SUB COURT,KOTTAYAM .................... PETITIONER: --------------- M.PAULOSE, S/O.M.P.MATHEW,MUTTATHOTTIL, VADAVATHOOR, KOTTAYAM. BY ADV. SRI.MATHEW JOHN (K) SRI.AJEESH K.SASI RESPONDENTS: ------------------ 1. THE BANK OF MAHARASTRA,REPRESENTED BY ITS BRANCH MANAGER, ARAFA TOWERS, KOTTAYAM. 2. EMPEEYEM RUBBERS, REP. BY CHACKO MATHEW, MUTTATHOTTIL MOUNT WARDHA, MUTTAMBALAM VILLAGE, KOTTAYAM. 3. PRIYA CHACKO MATHEW, MUTTATHOTTIL MOUNT WARDHA, MUTTAMBALAM VILLAGE, KOTTAYAM. SRI.B.PREMACHANDRA PRABHU THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.1173 of 2009 (M) APPENDIX PETITIONER'S EXTS:- EXT.P1:- A TRUE COPY OF THE AFFIDAVIT AND PETITION DT.26/02/08 BY THE PETITIONER. EXT.P2:- A TRUE COPY OF THE AFFIDAVIT AND PETITION BY THE PETITIONER. EXT.P3:- A TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER. EXT.P4:- A TRUE COPY OFA THE ORDER DT.07/10/08 IN I.A. NO.661/08 IN O.S. NO.479/04. EXT.P5:- A TRUE COPY OF THE ORDER DT.11/11/08 IN I.A. NO.659/08 IN O.S. NO.479/04. ..................... K.P.BALACHANDRAN, J. ------------------------------------------------ W. P. C. No.1173 of 2009 ------------------------------------------------ Dated this the 20th day of January, 2009 JUDGMENT The petitioner is the second defendant in O.S.479/04 on the file of the Sub Court, Kottayam. It is submitted that the suit was once decreed ex parte and later the ex parte decree was set aside on the application of the defendants. It is the case of the petitioner that on verification of the written statement it is seen that a joint vakalath and a joint written statement is filed before court as if it is the joint written statement filed by him along with defendants 1 and 3 whereas he has not signed in the written statement and that further, on verification of the records produced by the first respondent/Bank it was ascertained that no renewal letter was given by the petitioner/second defendant and W. P. C. No.1173 of 2009 -2- therefore, as against him, the suit would be barred by limitation that to establish all these contentions he filed Ext.P1 application in the court below under Order XXVI Rule 10A for his admitted signatures being got verified with his disputed signatures in the vakalath, in the written statement, in the renewal letter etc. by forwarding those to a handwriting expert for opinion and also filed Ext.P2 application to accept Ext.P3 written statement filed by him setting up his contentions and that the court below has vide Exts.P4 and P5 orders dismissed both Exts.P1 and P2 applications; that the said orders are passed even without permitting the petitioner to adduce evidence to establish his contentions and that the procedure adopted by the court below is illegal and therefore, he be given an opportunity to contest the suit W. P. C. No.1173 of 2009 -3- setting aside Exts.P4 and P5 orders and allowing Exts.P1 and P2 applications. 2. It is not in dispute that the ex parte decree stands set aside. In view of the contentions raised before me the petitioner's contention as to whether he has filed written statement along with defendants 1 and 3 giving joint engagement to Advocate Sri.Santhosh Modayil etc. raised in Ext.P3 written statement requires to be considered in the suit. Therefore, it is only proper that Ext.P3 written statement is accepted and considered by the court below. For the purpose, I set aside Ext.P5 order and allow Ext.P2 application viz I.A.659/08. The question as to whether Ext.P1 application seeking for the documents being forwarded for expert opinion regarding the signatures in the joint vakalath and joint written statement and in the renewal W. P. C. No.1173 of 2009 -4- letter etc. is a matter for consideration by the court afresh after the parties have adduced evidence in the case. On the contentions raised in Ext.P3 written statement, on both sides adducing evidence during trial of the case if the court finds that obtaining expert opinion as prayed for in Ext.P1 application is necessary for a proper adjudication of the dispute namely when clinching evidence is lacking as regards execution of the disputed documents, the court may allow Ext.P1 application and forward the documents made mention therein for expert opinion and not otherwise. Ext.P4 order on Ext.P1 application namely I.A.661/08 is set aside and I.A.661/08 is restored to file for being considered appropriately after adducing evidence by both sides in the suit. I.A.659/08 is allowed as already stated. W. P. C. No.1173 of 2009 -5- 3. This Writ Petition is thus allowed in part and is disposed of with the above directions. K.P.BALACHANDRAN, JUDGE kns/- W. P. C. No.1173 of 2009 -6- K.P.BALACHANDRAN, J. ------------------------------------------------ W. P. C. No.1173 of 2009 ------------------------------------------------ Dated this the 16th day of January, 2009 ORDER Notice was ordered to respondents by special messenger vide order dt.13/01/09 and the case is posted to this day granting interim stay till this day only as the suit is in the special list for trial. Though the special messenger could serve notice only on the first respondent/Bank and not on respondents 2 and 3, the first respondent has entered appearance through lawyer. Counsel for the first respondent submits that the suit is instituted by the first respondent/Bank for recovery of amounts due from defendants 1 to 3 therein who are respectively respondent No.2; the petitioner and respondent No.3 in this Writ Petition that the second respondent is the brother of the petitioner and that the W. P. C. No.1173 of 2009 -7- third respondent is the sister-in-law of the petitioner. Counsel for the petitioner submits that the whereabouts of R2 and R3 are not known and that they are absconding to the knowledge of the petitioner for the last more than one year. If that be so, I fail to understand why when this Writ Petition was filed respondent 2 and 3 were impleaded showing their address at Muttambalam, Kottayam and special messenger was taken out for service of notice to them as well. In the circumstances, I dispense with notice to respondents 2 and 3. Post the Writ Petition for hearing on 19/01/09. K.P.BALACHANDRAN, JUDGE kns/-