Dismissed

K L Rathan v. Unni K S

Kerala HC7 Mar 2017OP(C)/2901/2015

Case brief

AI extract

What is this about?

In an original petition under Article 227, the petitioner challenged lower court orders refusing to summon documents to prove the testator's mental state regarding a registered Will. In a suit where trial concluded and stay was sought, the petitioner claimed documents were unavailable in lower court custody. The High Court held no interference was warranted and dismissed the petition.

What did the court decide?

Petition dismissed without costs.

K L Rathan Vs Unni K S — Civil Procedure and Limitation | Kerala HC (2017)

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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 P.SOMARAJAN

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TUESDAY, THE 7TH DAY OF MARCH 2017/16TH PHALGUNA, 1938

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OP(C).No. 2901 of 2015 (O)

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AGAINST THEORDERS DATED 31.8.2015 & 29.9.2015 IN I.A.NOS.1321/2015 AND 3237/2013 RESPECTIVELY IN O.S.NO.113/2010 ON THE FILES OF ADDITIONAL SUB COURT, NORTH PARAVUR.

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PETITIONER/IST DEFENDANT:

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K.L. RATHAN, AGED 59 YEARS,

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S/O. LAKSHMANAN, KANAKKATHUSSERY HOUSE, CHERAI MURI, PALLIPPURAM VILLAGE.

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BY ADV. SRI.P.K.SAJEEV

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RESPONDENT/PLAINTIFF:

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UNNI K.S.,S/O. SUKUMARAN, KANAKKATHUSSERY HOUSE, CHUTTUPADUKARA, EDAPALLY NORTH VILLAGE, KANAYANNUR TALUK - 682 024.

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BY ADV. SRI.KURIAN JOSEPH (ARAKKUNNAM) BY ADV. SRI.NAVEEN THOMAS

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 07-03-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP(C).No. 2901 of 2015 (O)

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APPENDIX

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PETITIONER'S EXHIBITS

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EXT.P1	TRUE COPY OF THE PLAINT IN O.S.NO.113/2010 ON THE FILES OF THE ADDL. SUB COURT, NORTH PARAVUR.
EXT.P2	TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER IN O.S.NO.113/2010.
EXT.P3	TRUE COPY OF THE COMPLAINT IN CRL.M.P.NO. 235/2013 ON THE FILES OF THE CHIEF JUDICIAL MAGISTRATE COURT, THRISSUR.
EXT.P4	TRUE COPY OF THE FIRST INFORMATION REPORT IN CRIME NO.111/2013 OF THRISSUR WEST POLICE STATION.
EXT.P5	TRUE COPY OF THE APPLICATION FILED BY THE PETITIONER IN I.A.NO.1851/2013 IN O.S.NO.113/2010.
EXT.P6	TRUE COPY OF THE APPLICATION FILED BY THE PETITIONER I.A.NO.3237/2013 IN O.S.NO.113/2010.
EXT.P7	TRUE COPY OF THE APPLICATION IN I.A.NO.1801/2014 IN O.S.NO.113/2010.
EXT.P8	TRUE COPY OF THE APPLICATION FILED BY THE PETITIONER IN I.A.NO.387/2015 IN O.S.NO.113/2010.
EXT.P9	TRUE COPY OF THE APPLICATION FILED BY THE PETITIONER IN I.A.NO. 402/2015 IN O.S 113/2010.
EXT.P10	TRUE COPY OF THE APPLICATION FILED BY THE PETITIONER IN I.A.NO.1321/2015 IN O.S 113/2010.
EXT.P11	TRUE COPY OF THE ORDER DATED 31/08/2015 IN I.A.NO.1321/2015 IN O.S 113/2010.
EXT.P12	TRUE COPY OF THE ORDER DATED 29/09/2015 IN I.A.NO.3237/2013 IN O.S.NO.113/2010.

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RESPONDENTS' EXHIBITS: NIL

//TRUE COPY//

AHZ/

P.Somarajan, J.

O.P.(C)No.2901 of 2015 (O)

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Dated this the 7^th day of March, 2017

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JUDGMENT

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Aggrieved by the orders dated 31.8.2015 and 29.9.2015 in I.A.Nos.1321 of 2015 and 3237 of 2013 respectively, exhibited as Exts.P11 and P12, the original first defendant/petitioner came up with this original petition under Article 227 of the Constitution of India. The said applications were filed in O.S.No.113 of 2010 on the file of the Additional Sub Court, North Paravur so as to summon some documents in connection with the treatment given to the deceased testator who left out a Will. The Will was registered as 51/1991. The documents sought to be produced is for the purpose of proving that the testator was not having sound state of mind at the time of execution of the alleged Will. What is sought to be produced is from the custody of the Assistant Commissioner, Crime Detachment, who investigated a crime earlier and, according to the petitioner herein, those documents were seized by the said officer and produced before the Chief Judicial Magistrate Court, Thrissur in connection with a crime registered. Though orders were passed on

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O.P.(C)No.2901 of 2015 (O)

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:: 2 ::

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I.A.Nos.3237 of 2013 and 1321 of 2015 (Exts.P6 and P10), earlier and directions were issued to the Assistant Commissioner, Crime Detachment for production of those documents, the same was not produced as those documents are not available to him as the same were produced before the Chief Judicial Magistrate's Court, Thrissur in connection with a crime registered earlier. It is thereafter Ext.P10 application was filed for summoning the Assistant Commissioner, Crime Detachment as a witness. It was also fairly submitted by the learned counsel for the petitioner that trial has already been completed in that suit and now the case stood for judgment. At this stage, the present application is filed under Article 227 of the Constitution of India and obtained stay of further proceedings of the lower court.

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The prayer in the suit is to declare that the alleged Will is not binding on the plaintiff and the plaint schedule properties. Admittedly, the plaint schedule properties are the subject matter of the above said Will. There was an earlier suit in O.S.No.482 of 2001 which was fought up to this court in R.S.A.No.720 of 2010 wherein one of the questions decided was with respect to the genuineness of

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O.P.(C)No.2901 of 2015 (O)

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:: 3 ::

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the said Will. The Will was challenged by the plaintiff in that suit and the suit was ultimately ended in dismissal. So, the question of maintainability of the second suit was also raised and it is pending consideration.

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From the facts stated above, it is clear that there is nothing to interfere with the orders of the lower court by exercising supervisory jurisdiction under Article 227 of the Constitution of India. The various applications submitted for summoning the document and for adducing evidence can be looked into by the trial court at the time of disposal of the suit. Hence this original petition fails, it deserves only dismissal and I do so, but without any costs.

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P. Somarajan Judge

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ahz/

K L Rathan v. Unni K S

Case brief

What is this about?

What did the court decide?

K L Rathan v. Unni K S

Case brief

What is this about?

What did the court decide?

What the court decided

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