Allowed

Shijo Antony v. C.C Joy

Kerala HC24 May 2017OP(C)/945/2017

Case brief

AI extract

What is this about?

The High Court set aside the subordinate judge's orders dismissing the petitioner's applications. It allowed the interlocutory petition for amendment of the written statement and granted permission to send the disputed agreement for signature comparison at the Forensic Science Laboratory.

What did the court decide?

Interlocutory petitions for amendment and signature comparison allowed; lower court orders setting them aside were quashed.

Shijo Antony Vs C.C Joy — Property and Title | 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 B.KEMAL PASHA

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WEDNESDAY, THE 24TH DAY OF MAY 2017/3RD JYAISHTA, 1939 OP(C).No. 945 of 2017 (O) --------------------------

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AGAINST THE ORDER DATED 09.01.2017 IN I.A.NO.759/2016 AND ORDER DATED 27.02.2017 IN I.A.NO.33/2017 IN O.S.NO.126/2011 OF THE SUBORDINATE JUDGE’S COURT, HOSDURG

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PETITIONER:

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SHIJO ANTONY, AGED 36 YEARS, S/O. PATHICKAL ANTONY PATHICKAL HOUSE, ELIKKULAM P.O., KANJIRAPPALLI TALUK, KOTTAYAM DISTRICT, PIN - 686 577.

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BY ADVS.SRI.T.R.RAVI SRI.JAWAHAR JOSE SRI.V.VINAY MENON SMT.CISSY MATHEWS SRI.BINISH MATHEW

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RESPONDENTS:

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1. C.C. JOY, AGED 49 YEARS, S/O.CHAKKAUNY, CHERADI HOUSE, KADUPPASSERI VILLAGE, MUKUNDAPURAM TALUK, IRINJALAKUDA (VIA), THRISSUR DISTRICT, PIN - 680 672.

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2. PATHICKAL ANTONY, AGED 71 YEARS, S/O. ANTONY, PATHICKAL HOUSE, ELIKKULAM P.O., KANJIRAPPALLI TALUK, KOTTAYAM DISTRICT, PIN - 686 577.

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OP(C).No. 945 of 2017 (O) --------------------------

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3. PATHICKAL MARY, AGED 67 YEARS, W/O. PATHICKAL ANTONY, PATHICKAL HOUSE, ELIKKULAM (P.O.), KANJIRAPPALLI TALUK, KOTTAYAM DISTRICT, PIN - 686 577.

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R1 BY ADVS. SRI.P.CHANDRASEKHAR SMT.V.A.HARITHA SMT.P.M.MAZNA MANSOOR SRI.K.ARJUN VENUGOPAL SMT.MARY RESHMA GEORGE

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R2 & R3 BY ADV. SRI.RIJI RAJENDRAN

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 24-05-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP(C).No. 945 of 2017 (O)

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APPENDIX

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PETITIONER’S EXHIBITS :

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P1 TRUE COPY OF THE PLAINT IN OS NO. 126/2011.
P1(A) TRUE COPY OF THE AGREEMENT DATED 26.2.2010.
P2 TRUE COPY OF THE WRITTEN STATEMENT DATED 12.4.2012 FILED BY THE PETITIONER.
P3 TRUE COPY OF THE ADDITIONAL WRITTEN STATEMENT DATED 31.3.2013 FILED BY THE PETITIONER.
P4 TRUE COPY OF THE INTERLOCUTORY PETITION FILED AS IA NO. 759/2016.
P4(A) TRUE COPY OF THE COUNTER TO IA NO. 759/2016.
P5 TRUE COPY OF THE INTERLOCUTORY PETITION FILED AS IA NO. 33/2017.
P5(A) TRUE COPY OF THE COUNTER TO IA NO. 33/2017.
P6 TRUE COPY OF THE ORDER DATED 09.1.2017 IN IA NO. 759/2016.
P7 TRUE COPY OF THE ORDER DATED 27.2.2017 IN IA NO. 33/2017.

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RESPONDENTS’ EXHIBITS :

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R1(A)	THE TRUE COPY OF THE JUDGMENT IN FAO NO.38/2012 DATED 27.09.2012 OF THIS HONOURABLE COURT.
R1(B)	THE TRUE COPY OF THE COMMISSION REPORT DATED 20.05.2015 OF ADVOCATE COMMISSIONER MR.R.SATHEENDRAN IN I.A.NO.226/2015 IN O.S.NO.126/2011 ON THE FILE OF SUB COURT, HOSDURG.
R1(C)	TRUE COPY OF THE ORDER DATED 08.10.2015 IN I.A.NO.382/2015 AND I.A.NO.383/2015 IN O.S.NO.126/2011 ON THE FILE OF SUB COURT, HOSDURG.
R1(D)	THE TRUE COPY OF THE JUDGMENT IN FAO NO.239/2015 DATED 15.01.2016 OF THIS HONOURABLE COURT.
	// True Copy //

P.A. To Judge

DSV/-

B. KEMAL PASHA, J

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O.P.(Civil)No.945 of 2017

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=================

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Dated this the 24^th day of May, 2017

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J U D G M E N T

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The 3^rd defendant in O.S.No.126 of 2011 of the Subordinate Judge’s Court, Hosdurg, filed I.A.No.33 of 2017, for sending agreement dated 26.02.2010 for comparison of some of the signatures in it to the Forensic Science Laboratory, Kannur. It seems that through the impugned Exhibit-P7 order, the court below has dismissed the I.A.

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Similar is the case with Exhibit-P6 order also. Through Exhibit-P6 order, the court below has dismissed I.A.No.759 of 2016 filed by the petitioner for getting his written statement amended under Order VI Rule 17, through Exhibit-P6 order.

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Heard the learned counsel for the petitioner

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and the learned counsel for the 1^st respondent.

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O.P.(Civil)No.945 of 2017

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The learned counsel for the 1^st respondent has pointed out that twice the suit was decreed exparte and later such exparte decrees were set aside at the instance of the petitioner and defendants 2 and 3. According to the learned counsel for the 1^st respondent, the present tactics being adopted by the petitioner is nothing but to protract the proceedings further to deny the fruit of the litigation to the 1^st respondent/plaintiff.

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On hearing both sides and on a perusal of

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the pleadings and other documents, it seems that the court below has failed to consider the matter properly. No doubt, Exhibit-P7 order is a cryptic order, by which the I.A. has been unnecessarily dismissed. In order to decide the matters in controversy, the comparison of such disputed signatures in the agreement with the specimen signatures and admitted signatures of the petitioner is required. The court below has failed to consider

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O.P.(Civil)No.945 of 2017

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these aspects, which has resulted in substantial miscarriage of justice. Therefore, Exhibit-P7 order is liable to be set aside.

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Earlier, the petitioner had filed an additional written statement; evidently, without obtaining leave of the court below. When that aspect was pointed out, the petitioner had no other go than to incorporate the matters contained in the additional written statement in the original written statement through an amendment. Considering the matters in controversy, this Court is of the view that the court below ought to have allowed the said request. Therefore, I.A.No.759 of 2016 is liable to be allowed.

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In the result, this O.P.(C) is allowed. Exhibit-P6 order as well as Exhibit-P7 order are set aside. I.A.No.759 of 2016 in O.S.No.126 of 2011 stands allowed. The petitioner shall carry out the amendment at the earliest within the stipulated time. I.A.No.33 of 2017 in O.S.No.126 of 2011 of the

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O.P.(Civil)No.945 of 2017

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court below stands allowed. The petitioner shall take all necessary steps within two weeks from today, before the court below, for sending the agreement to the Forensic Science Laboratory, Kannur, for comparison of the disputed signatures. The petitioner shall produce his admitted signatures before the court below within the said period. The court below shall get the specimen signatures of the petitioner recorded and shall forward the admitted signatures and specimen signatures along with the

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disputed signatures to the Laboratory, at the earliest, with a request to get the report expeditiously. The petitioner shall deposit all such expenses required before the court below within two weeks from today. The Laboratory shall prepare the report and finalize the matter expeditiously.

Sd/-

B. KEMAL PASHA

JUDGE

DSV/24/5/17

// True Copy // P.A. To Judge

Shijo Antony v. C.C Joy

Case brief

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What did the court decide?

Shijo Antony v. C.C Joy

Case brief

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