Remanded

Josily Elizabeth Thomas v. Marykutty Thomas

Kerala HC2 Jan 2014OP(C)/4217/2013

Case brief

AI extract

What is this about?

The High Court allowed plaintiffs in a specific performance suit to adduce further evidence regarding e-mail communications contested by defendants. Evidence must be completed by 20.1.2014, with the final suit disposal targeted by 31.1.2014.

What did the court decide?

Ordering trial court to reopen case permit further evidence and dispose product of the suit on or before 31st January 2014.

Josily Elizabeth Thomas Vs Marykutty Thomas — Specific Performance | Kerala HC (2014)

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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 N.K.BALAKRISHNAN

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THURSDAY, THE 2ND DAY OF JANUARY 2014/12TH POUSHA, 1935

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OP(C).No. 4217 of 2013 (O)

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OS 362/2008 of SUB COURT, PATHANAMTHITTA

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PETITIONER(S) :-

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JOSILY ELIZABETH THOMAS W/O. LATE THOMAS MATHEW KIZHAKKETHAILAYA MANIVALLIL HOUSE, KOZHENCHERRY PATHANAMTHITTA DISTRICT.

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BY ADVS.SRI.JACOB P.ALEX SRI.JOSEPH P.ALEX

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RESPONDENT(S) :-

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1. MARYKUTTY THOMAS MALAYATOOR HOUSE, KOZHENCHERRY VILLAGE AND TALUK PATHANAMTHITTA DISTRICT.

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2. ABRAHAM THOMAS MALAYATOOR

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POST BOX NO.20869, NICOSIA 1664, CYPRUS (REPRESENTED BY POWER OF ATTORNEY HOLDER/1ST RESPONDENT MARYKUTTY THOMAS, MALAYATOOR HOUSE KOZHENCHERRY VILLAGE AND TALUK PATHANAMTHITTA DISTRICT).

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3. MATHEWS MALAYATOOR

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POST BOX NO.8298, SAMORA AVENUE, DAR ES SALAAM TANZANIA (REPRESENTED BY POWER OF ATTORNEY HOLDER/ 1ST RESPONDENT MARYKUTTY THOMAS, MALAYATOOR HOUSE KOZHENCHERRY VILLAGE AND TALUK, PATHANAMTHITTA DISTRICT).

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4. DR. JIJAN SAM THOMAS, POST NOX NO.1670, ARDIYA POST, KUWAIT, CODE NO.92400. (REPRESENTED BY POWER OF ATTORNEY HOLDER/1ST RESPONDENT MARYKUTTY THOMAS MALAYATOOR HOUSE, KOZHENCHERRY VILLAGE AND TALUK PATHANAMTHITTA DISTRICT).

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R1 - R4 BY ADV. SRI.P.HARIDAS

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SRI.G.SREEKUMAR (CHELUR) SMT.S.SIKKY

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 02-012014, ALONG WITH OP(C) No.4590/2013 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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jvt

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OP(C).No. 4217 of 2013 (O)

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APPENDIX

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PETITIONER(S)' EXHIBITS :-

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EXT.P1 : COPY OF THE PLAINT IN OS 362/2008 ON THE FILES OF SUB COURT, PATHANAMTHITTA.

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EXT.P2 : COPY OF THE WRITTEN STATMENT IN OS NO.362/2008 ON THE FILES OF SUB COURT, PATHANAMTHITTA.

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EXT.P3 : COPY OF THE IA NO.1106 OF 2013 FILED BY PLAINTIFFS TO REOPEN HEARING.

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EXT.P4 : COPY OF IA NO.1123 OF 2013 FILED BY THE PLAINTIFFS ON 26.8.2013.

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EXT.P5 : COPY OF THE COUNTER AFFIDAVIT FILED BY DEFENDANTS TO EXT.P4.

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EXT.P6 : COPY OF THE IA NO.1366 OF 2013 FILED BY PLAINTIFFS.

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EXT.P7 : COPY OF THE OBJECTION FILED TO EXT.P6 BY DEFENDANTS.

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EXT.P8 : COPY OF THE IA NO.1553 OF 2013 FILED BY PLAINTIFFS ON 23.10.2013.

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EXT.P9 : COPY OF THE OBJECTION FILED TO EXT.P8 BY THE DEFENDANTS.

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EXT.P10: COPY OF THE IA NO.1660 OF 2013 FILED BY PLAINTIFFS ON 15.11.2013.

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EXT.P11: COPY OF THE B DIARY IN OS NO.362 OF 2008 OF SUB COURT, PATHANAMTHITTA.

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EXT.P11(A): COPY OF THE DETILS OF POSTINGS OF THE CASE BETWEEN 29.8.2013 AND 15.11.2013.

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RESPONDENT(S)' EXHIBITS :- NIL

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//True Copy//

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P.A. To Judge

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N.K.BALAKRISHNAN, J.

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O.P.(C). Nos.4217 & 4590 of 2013

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Dated this the 2^nd day of January 2014

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J U D G M E N T

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OP(C) No.4217/13 is filed by the first defendant in a suit for specific performance. OP(C) No.4590/13 is filed by plaintiffs 2 to 5 in that suit. The suit was filed contending that there is agreement for sale of the property. It was stated that Rs.17 lakhs was paid by the 1^st plaintiff to the defendants as part of the sale consideration.

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The trial in the suit was commenced. It is seen that

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ten witnesses were already examined on the side of the plaintiffs and documents were also marked. Three witnesses were examined on the side of the defendants. The case was posted to 25.5.2013 for hearing. Thereafter, the suit underwent several adjournments because of the applications filed by the plaintiffs, it is contended by the defendants. OP(C) 4217/13 has been filed for a direction to be issued to the learned Trial Judge to finally dispose of the suit (O.S.No.362/2008) within a time frame to be fixed by this Court. In the meanwhile, the plaintiffs filed OP(C)

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O.P.(C). Nos.4217 & 4590 of 2013

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-: 2 :-

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4590/13 for a direction to be issued to the learned Sub Judge to pass appropriate orders on Exts.P7, P9 and P11 within a time limit to be fixed by this Court.

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Learned counsel for the defendants submits that the only idea of the plaintiffs is to protract the proceedings indefinitely. A perusal of the 'B' diary will show that the case underwent several adjournments only because the plaintiffs were not ready to argue the matter. The evidence on the side of the plaintiffs was over several months ago and so, there is no merit in the contention advanced by the plaintiffs that the trial court should be directed to dispose of the applications as mentioned above, the learned counsel for the defendants argues.

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It is further submitted that Exts.P7 and P9 applications referred to in OP(C) 4590/2013 were already allowed by the trial court. Now the request made on behalf of the petitioners in OP(C) 4590/13 (plaintiffs) is that the suit may be re-opened to receive the documents in evidence. It is stated that there were e-mail communications which would demolish the case of the defendants and that if those documents are not allowed to be brought on record it will ultimately affect their

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O.P.(C). Nos.4217 & 4590 of 2013

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-: 3 :-

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claim in the suit.

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This request is strongly opposed by the learned counsel for the respondents. Learned counsel relies upon the decision of the Hon'ble Supreme Court in Begai Construction v. Gupta Building [2013 (1) KLT Suppl. 60 (SC)]. That was a case where the materials placed before the court showed that the particulars regarding the bills had already been mentioned by the plaintiff in the statement of account but the original bills were not placed on record till the date of filing of the application, which was allowed by the High Court. It was also found that during the entire trial those documents remained in the exclusive possession by the plaintiff but for the reason known to the plaintiff those bills were not produced. The trial court in that case observed that no acceptable reason or cause was shown by the plaintiff as to why those documents were not placed on record by the plaintiff during the entire trial. The High Court permitted the plaintiff to place on record certain bills and also granted permission to recall PW1 to prove those documents. That was set aside by the Honourable Supreme Court. Hence, according to the learned counsel, the aforesaid decision squarely

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O.P.(C). Nos.4217 & 4590 of 2013

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-: 4 :-

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applies to the facts of this case.

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Learned counsel for the plaintiffs would submit that the facts of this case are entirely different. It is submitted that earlier there was no case for the defendants that there was any fraud or anything of that sort and now a new contention has been raised. It is not for this Court to say the acceptability or otherwise of any such contention since all those matters are to be considered by the trial court.

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Learned counsel for the defendants has also submitted that in fact the plaintiffs wanted to get some witnesses from foreign country to prove the e-mail communications. But the learned counsel for the plaintiffs would submit that the witnesses to prove those documents are only from the State of Kerala and that the entire evidence can be completed within three weeks from today. The documents which are requested to be received in evidence by the plaintiffs were not the documents which were in the custody of the plaintiffs. The necessity of production of those documents arose because of the contentions raised by the defendants during trial, it is submitted by the learned counsel for the plaintiffs. Hence, I find that the plaintiffs can be permitted to

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O.P.(C). Nos.4217 & 4590 of 2013

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-: 5 :-

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adduce evidence but there should be a time limit. Hence, both the OPs are disposed of as stated below :-

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The court below will re-open the case permitting the plaintiffs to adduce whatever further evidence they want to adduce in the matter but the entire evidence shall be completed on or before 20.1.2014. No request for further adjournment for adduction of evidence or for any other purpose shall be entertained since the trial court may have to dispose of the suit on or before 31.1.2014. The learned trial Judge will make every endeavour to dispose of the suit on or before 31.1.2014.

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Sd/N.K.BALAKRISHNAN, J UDGE.

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Jvt

Josily Elizabeth Thomas v. Marykutty Thomas

Case brief

What is this about?

What did the court decide?

Josily Elizabeth Thomas v. Marykutty Thomas

Case brief

What is this about?

What did the court decide?

What the court decided

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