Dismissed

M.A.K. Azad v. Varkey

Kerala HC10 Oct 2012OP(C)/2699/2012

Case brief

AI extract

What is this about?

The High Court dismissed a civil original petition seeking permission to reopen evidence in a property suit. The Court held that evidence cannot be examined without pleading, noted the petitioner failed to serve notice as ordered, and found no infirmity in the lower court order dismissing applications to examine a police officer or recall the third defendant.

What did the court decide?

Original Petition dismissed with no costs.

M.A.K. Azad Vs Varkey — Property and Title | Kerala HC (2012)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT:

¶3

THE HONOURABLE MR.JUSTICE V.CHITAMBARESH

¶4

WEDNESDAY, THE 10TH DAY OF OCTOBER 2012/18TH ASWINA 1934

¶5

OP(C).No. 2699 of 2012 (O)

¶6

OS.477/2007 of ADDITIONAL SUB COURT,IRINJALAKUDA

¶7

PETITIONER(S):

¶8

M.A.K. AZAD, AGED 58 YEARS

¶9

S/O.LATE MUHAMMED GHANI,G-211, MAIN AVENUE PANAMPILLY NAGAR, KOCHI-36, ERNAKULAM VILLAGE KANAYANNUR TALUK ERNAKULAM DISTRICT.

¶10

BY ADVS.SRI.VARGHESE C.KURIAKOSE

¶11

SRI.G.MANU KRISHNAN

¶12

RESPONDENT(S):

¶13

VARKEY, AGED 73 YEARS

¶14

S/O.AREEKAL PAULO, AREEKAL HOUSE, VAPPALASSERY KARA NEDUMBASSERY VILLAGE, ALUVA TALUK 683135

¶15

N.BABU, , AGED 58 YEARS

¶16

S/O.NARAYANAN, CHETTIPARAMBIL HOUSE, EDAPPALLY NORTH ERNAKULAM KOCHI 682015

¶17

REJIKUTTAN, , AGED 43 YEARS S/O.PAVITHRAN, PUTHANTHARA HOUSE, T.V.PURAM VAIKOM, KOTTAYAM 686350

¶18

BY ADV. SRI.K.S.BHARATHAN

¶19

BY ADV. SRI.K.G.BALASUBRAMANIAN

¶20

THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 10-10-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶21

OP(C) NO. 2699/2012

¶22

APPENDIX

¶23

PETITIONER(S) EXHIBITS

¶24

EXT.P1	TRUE PHOTSTAT COPY OF PLAINT IN O.S.NO.477/2007 BEFORE THE HON'BLE SUB COURT, IRINJALAKUDA.
EXT.P2	TRUE PHOTOSTAT COPY OF COMPLAINT BEFORE THE POLICE (NEDUMBASSERY POLICE STATION).
EXT.P3	TRUE PHOTOSTAT COPY OF THE STATEMENT DATED 27/07/2012 BY THE SUB INSPECTOR OF POLICE, NEDUMBASSERY POLICE STATION.
EXT.P4	TRUE PHOTOSTAT COPY OF THE I.A.NO.3160/2012 TO REOPEN THE EVIDENCE.
EXT.P5	TRUE PHOTOSTAT COPY OF THE I.A.NO.3161/2012 TO RECALL HIMSELF TO ADDUCE FURTHER EVIDENCE.
EXT.P6	TRUE PHOTOSTAT COPY OF THE I.A.NO.3162/2012 TO ACCEPT THE LIST OF WITNESSES AND TO ISSUE SUMMONS TO THE WITNESSES.
EXT.P7	TRUE PHOTOSTAT COPY OF THE I.A.NO.3163/2012 TO ACCEPT THE ADDITIIONAL LIST OF DOCUMENT.
EXT.P8	TRUE PHOTOSTAT OF THE I.A.NO.3164/2012 TO DIRECTING PERSONAL APPEARANCE OF THE 1ST RESPONDENT IN COURT.
EXT.P9	TRUE PHOTOSTAT COPY OF THE JUDGMENT DATED 07/08/2012 INO.P(C) NO.2580/2012.
EXT.P10	TRUE PHOTOSTAT COPY OF THE COMMON ORDER DATED 08/08/2012.

¶25

RESPONDENTS' EXHIBITS : NIL

¶26

/TRUE COPY/

¶27

P.A. TO JUDGE.

¶28

V. CHITAMBARESH, J

¶29

OP(C) NO. 2699 OF 2012

¶30

Dated this the 10^th day of October, 2012

¶31

JUDGMENT

¶32

I heard Mr. Varghese C. Kuriakose, Advocate on behalf of the petitioner and Mr. K.G. Balasubramanian and Mr. K.S. Bharathan, Advocates on behalf of the other respondents.

¶33

This is an yet another Original Petition filed from an interim order passed in O.S. No. 477/2007 on the file of the court of the Subordinate Judge of Irinjalakuda. The present Original Petition was admitted to file on 16.08.2012 and notice by special messenger ordered to the respondents. But it is appalling to note that the petitioner did not take steps to serve notice on the respondents by special messenger as ordered. The petitioner is stated to have taken steps only on 03.10.2012 and that too after the respondents entered appearance through counsel. Resultantly the court below was not able to pronounce the judgment in the suit eventhough the evidence has been recorded and the arguments addressed.

¶34

It is trite law that no evidence can be looked into where there is no pleading. There is no averment in the plaint

¶35

¶36

OP(C) No. 2699/2012

¶37

that the sale deed executed by the second defendant in favour of the third defendant is sham or fraudulent. The capacity of the third defendant to get assignment of the property is also not questioned in the plaint.

¶38

The petitioner seeks permission to examine the Sub Inspector of Police, Nedumbassery. It is stated that the third defendant has preferred a statement dated 27.07.2012 to the Sub Inspector of Police. The said statement (Ext.P3) does not inspire confidence in me. Moreover it is extremely doubtful as to whether such statement is admissible in evidence under Section 162 of the Code of Civil Procedure.

¶39

The petitioner cannot compel the third defendant to appear in court and tender evidence. Other contesting defendants have adduced evidence and addressed arguments too. The evidence is sought to be reopened only for the purpose of examining the police officer. Nothing turns out on the statement alleged to have been given by the third defendant to the police. This is especially so when pleadings in that behalf are scanty.

¶40

¶41

OP(C) No. 2699/2012

¶42

I do not find any infirmity in the order of the court dismissing all interlocutory applications including the one filed to reopen the evidence and to direct the third defendant to appear in court.

¶43

The Original Petition fails and is dismissed. No costs.

¶44

V. CHITAMBARESH JUDGE

¶45

ncd

M.A.K. Azad v. Varkey

Case brief

What is this about?

What did the court decide?

M.A.K. Azad v. Varkey

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

M.K. Rajesh Vs Lohithakshan

Chellama Vs Bhanumathi and 7 Others

M.a.Majeeth Vs a.K.Jayadev Singh

Hameed Rawther Vs Achudan Saradha

Ayisha Kutty Vs Suresh Babu

M/S.C.World Holidays India Private Limited Vs Mrs.Beena Zacharia