Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE SATHISH NINAN TUESDAY ,THE 19TH DAY OF FEBRUARY 2019 / 30TH MAGHA, 1940 AGAINST THE ORDER IN OS 151/2009 of SUB COURT,KOCHI PETITIONERS:
1 THAMBI, S/O KUNJUNNI, MEPARAMBIL HOUSE, ELAMKUNNAPUZHA VILLAGE, KOCHI TALUK 682 511. 2 AYSHA,AGED 50 YEARS D/O KUNJUNNI, W/O RAJESH, C/O PRABHALA, THAYATTUPARAMBIL, NJARAKKAL 682 505. 3 GIRIJA, AGED 48 YEARS D/O KUNJUNNI, W/O SASI, PULLOTHU HOUSE, CHERAI. 4 MADHANAN, AGED 55 YEARS S/O KUNJUNNI, MEPARAMBIL, HOUSE, ELAMKUNNAPUZHA POST 5 BABU, S/O KUNJUNNI, MEPARAMBIL HOUSE, ELAMKUNNAPUZHA VILLAGE, KOCHI TALUK 682 504. 6 BOSE, S/O KUNJUNNI, MEPARAMBIL HOUSE NAJARAKKAL 682 505 7 RUDRAN, S/O KUNJUNNI, MEPARAMBIL HOUSE NAJARAKKAL 682 505 BY ADV. SRI.DENIZEN KOMATH
RESPONDENTS: 1 JYOTHI, AGED 49 YEARS W/O ASKAN, KOCHIKKAPARAMBIL HOUSE, MALIPPURAM DESOM, ELAMKUNNAPUZHA VILLAGE, KOCHI TALUK.
2 SUJATHA, AGED 55 YEARS W/O THANKAPPAN, MEPARAMBIL CHERIYAPALLAMTHURUTH,NORTH PARAVUR. 3 RAJESH, AGED 35 YEARS S/O THANKAPPAN, MEPARAMBIL HOUSE, CHERIYAPALLAMTHURUTH,NORTH PARAVUR. 4 RATHEESH, AGED 33 YEARS S/O THANKAPPAN, MEPARAMBIL HOUSE, CHERIYAPALLAMTHURUTH HOUSE,NORTH PARAVUR. 5 RAJI, AGED 32 YEARS D/O THANKAPPAN, MEPARAMBIL HOUSE, CHERIYAPALLAMTHURUTH HOUSE,NORTH PARAVUR. BY ADVS. SHRI. ANOOP KRISHNA SHRI.ASWIN KUMAR M J SMT.V.A.HARITHA SRI.D.SREEKANTH SRI.K.ARJUN VENUGOPAL SRI.P.CHANDRASEKHAR SRI.R.NANDAGOPAL SRI.SIDHARTH B PRASAD
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 19.02.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
JUDGMENT
The additional defendants in a suit for specific performance challenges the order refusing to refer the disputed document to scientific investigation.
2. Advocate Sri. P.Chandrasekhara enters appearance for the respondents. Heard both sides.
3. The suit for specific performance was originally filed against defendants 1 and 2. Both the defendants are no more. The legal heirs have been impleaded as additional defendants.
4. The execution of the agreement for sale is not in dispute. The dispute is centered around an endorsement alleged to have been made on the reverse of the agreement. The second defendant in the suit
remained ex parte. The first defendant filed a written statement denying the alleged endorsement on the reverse of the agreement. The contention is that the endorsement is a fabricated one.
5. The court below noticed that the alleged
endorsement contains the signature of both the defendants. It is further noticed that even if the alleged endorsement is ignored, the suit is filed within the period of limitation. As regards the statement in the endorsement regarding payment of Rs.3,00,000/-, the court below noticed that payment can be proved by adducing evidence. Accordingly, the application was dismissed.
6. Though on the facts as noticed supra I do
not find any reason to interfere with the order
impugned at this stage, I leave open the right of the petitioners to seek for reference to expert after the entire evidence is taken. The court below shall, in such event, based on the materials as may then be available, consider the said request on its merits and pass appropriate orders on the said application, if any moved. In such event the court shall be entitled to arrive at an independent
conclusion dehors the impugned order.
With the above observations the original petition is disposed of. Sd/- Sathish Ninan, Judge vdv
APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 TRUE PHOTOCOPY OF THE PLAINT IN OS NO 151 OF 2009 ON THE FILE OF SUB COURT, KOCHI EXHIBIT P2 TRUE PHOTOCOPY OF THE WRITTEN STATEMENT FILED BY THE 1ST DEFENDANT. EXHIBIT P3 TRUE PHOTOCOPY OF THE ORDER OF THIS HONOURABLE COURT IN FAO NO 84 OF 2014 DATED 9.4.2018 EXHIBIT P4 TRUE PHOTOCOPY OF THE I.A NO 828 OF 2018 IN O.S NO 151 OF 2009 EXHIBIT P4 A TRUE PHOTOCOPY OF THE OBJECTION FILED BY THE RESPONDENTS. EXHIBIT P5 TRUE PHOTOCOPY OF THE ORDER IN IA NO EXHIBIT P6 TRUE PHOTOCOPY OF THE ORDER OF THE SUB COURT, KOCHI IN IA NO 828 OF 2018 IN O.S NO 151 OF 2009 DATED 19.1.2019