Allowed

Madhava Kini v. K.Govindan Nair

Kerala HC7 Jun 2007WP(C)/11710/2005

Case brief

AI extract

What is this about?

This writ petition challenges an order dismissing an application to adduce counter evidence in a civil suit regarding adverse possession. The High Court set aside the order and allowed the application based on the fairness of allowing plaintiffs to present counter-evidence before final determination.

What did the court decide?

The impugned order is set aside; I.A. No. 835/2005 is allowed for the petitioners to adduce counter evidence.

Madhava Kini Vs K.Govindan Nair — Civil Procedure and Limitation | Kerala HC (2007)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE THURSDAY, THE 7TH JUNE 2007 / 17TH JYAISHTA 1929

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WP(C).No. 11710 of 2005(R)

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-------------------------OS.237/2001 of PRL.MUNSIFF COURT, CHERTHALA

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PETITIONER:

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MADHAVA KINI, S/O. SREEDHARA KINI THOPPILCHIRA, J.M. NVAS, FROM KALATHIPARAMBU PUTHENMADOM, PADINJATTINKARA, VADAKKUM MURI, THURAVOOR NORTH VILLAGE.

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JAYANTHI BAI, W/O MADHAVA KINI, DO. DO.

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BY ADV. SRI.G.GOPAKUMAR (CHERTHALA) SRI.RASHEED C.NOORANAD

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RESPONDENTS:

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K. GOVINDAN NAIR, MUNDUPARAMBIL, JAYA NIVAS, PADINJATTINKARA, VADAKUM MURI, THURAVOOR NORTH VILLAGE.

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BY ADV. SRI.J.OM PRAKASH

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/06/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WPC NO. 11710/2005

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APPENDIX

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PETITIONERS EXHIBITS:

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EXT.P1: COPY OF COMMISISON REPORT IN O.S. 237/01 FILED BY COMMISSIONER BEFORE M.C.SHERTHALAI.

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EXT.P2: COPY OF ORDER IN I.A. NO. 835/04 IN O.S. NO. 237/01 OF M.C.SHERTHALA DATED 21.3.2005

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/TRUE COPY/

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PIUS C. KURIAKOSE, J.

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W.P.(C) NO. 11710 of 2005 ---------------------------------Dated this the 7^th day of June 2007

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JUDGMENT

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In a suit for fixation of documents filed by the petitioners/plaintiffs, the contention which was seriously raised by the defendant/respondent was one of adverse possession. When the suit was listed for trial, it was submitted on behalf of the plaintiffs that the plaintiffs do not want to adduce evidence at that stage and will adduce only counter evidence with regard to the defendant's claim of adverse possession. Accordingly, the defendant adduced evidence and the defendant's evidence was closed on 4.3.2005. From that day, the case was adjourned to 11.3.2005 for hearing. At that time, he plaintiffs filed I.A. No. 835/2005 seeking permission to adduce counter evidence. The learned Munsiff has dismissed that application by passing impugned order.

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Heard Sri.G.Gopakumar, the learned counsel for the petitioners and Sri.Om Prakash the learned counsel for the respondent. Mr.Gopakumar submits that it was submitted by the

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WPC No. 11710/2005

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plaintiffs at the time of commencement of actual trial that the plaintiffs will be adducing only counter evidence regarding the claim of adverse possession, but the evidence of the defendant was closed on 4.3.2005 and without affording an opportunity to the plaintiffs for counter evidence.

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The learned counsel for the respondent submits that it is true that at the commencement of the trial, the plaintiffs submitted that they will be adducing counter evidence, but when defendant 's evidence was closed, the plaintiffs were not prepared to adduce any counter evidence or even seek time for adducing counter evidence. Therefore, the learned Munsiff cannot be blamed for having passed the impugned order.

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As I have already indicated, defendant's evidence was closed on 4.3.2005 and it is not seen that any posting whatsoever was given for adducing counter evidence by the plaintiffs. What is seen from the impugned order is that upon the plaintiffs submitting that they did not want to adduce any evidence but at the stage of commencement of the trial and that they only want counter evidence but what the learned Munsiff did was to close the plaintiffs evidence. There is nothing on

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WPC No. 11710/2005

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record to show the petitioners' unwillingness to adduce any counter evidence to the evidence adduced by the defendant on 4.3.2005. In all probabilities, it is only when they found that the case is posted for hearing after closing the defendant's evidence that it will became necessary for the petitioners to file I.A. 835/2005. I.A. 835/2005, in my opinion, should have been allowed by the learned Munsiff since after all the plaintiffs petitioners do not stand to gain anything by protracting the trial of their own suit.

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Result is that Ext.P2 will stand set aside. I.A. 835/2005 will stand allowed. The petitioners will adduce whatever counter evidence they have at their command to the evidence adduced by the defendant on the posting date which comes first after three weeks of production of a copy of this judgment.

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PIUS C. KURIAKOSE, JUDGE.

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dpk

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WPC No. 11710/2005 4

Madhava Kini v. K.Govindan Nair

Case brief

What is this about?

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Madhava Kini v. K.Govindan Nair

Case brief

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