Disposed

Sonaratnan v. Santhakumari

Kerala HC7 Mar 2018OP(C)/601/2018

Case brief

AI extract

What is this about?

This writ petition under Article 226 challenged an order dismissing an application to summon the original police petition register. The High Court observed that the trial court decides admissibility of evidence. It set aside the impugned order, remitted the matter, and directed the petitioner to take a definite stand on the necessity of summoning an official witness. The petition stood disposed of

What did the court decide?

The impugned order of April 15, 2018 rejected the application was set aside. The matter was remitted to the trial court with a direction to the petitioner to decide on summoning an official witness wi

Sonaratnan Vs Santhakumari — Civil Procedure and Limitation | Kerala HC (2018)

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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 ALEXANDER THOMAS

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WEDNESDAY, THE 7TH DAY OF MARCH 2018 / 16TH PHALGUNA, 1939 OP(C).No. 601 of 2018 --------------------I.A NO.731/2018 IN O.S NO.892/2008 OF ADDITIONAL SUB COURT-11, ERNAKULAM -------------

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PETITIONER(S)/PETITIONERS IN I.A:

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1 SONARATNAN, S/O.RAMAN AND KARTHIAYANI,CHONEKATT HOUSE, UDYAMPEROOR.P.O,PIN-682307.

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2 KIRAN RATNAM, S/O.SONARATNAN,PERMANENTLY RESIDING AT CHONEKATT HOUSE,UDYAMPEROOR.P.O,PIN 682307,EMPLOYED AS Q.C.ENGINEER, M/S.AMEC GROUP LTD.,P.O.BOX 28250,SAFAT,KUWAIT 13143, KUWAIT AND REPRESENTED BY POWER OF ATTORNEY HOLDER AND FATHER SONARATNAN,S/O.RAMAN AND KARTHIAYANI,CHONEKATT HOUSE,UDAYAMPEROOR.P.O,PIN-682307.

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3 KISHORE RATNAN, S/O.SONARATNAN,PERMANENTLY RESIDING AT CHONEKATT HOUSE,UDYAMPEROOR.P.O,PIN 682307,NOW EMPLOYED AS ENGINEER,P.O.BOX 9325 DUBAI,UAE,REPRESENTED BY POWER OF ATTORNEY HOLDER AND FATHER SONARATNAN,S/O.RAMAN AND KARTHIAYANI,CHONEKATT HOUSE, UDYAMPEROOR.P.O,PIN 682307.

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BY ADVS.SRI.M.P.RAMNATH SRI.P.RAJESH (KOTTAKKAL) SEI.M.VARGHESE VARGHESE SRI.K.J.SEBASTIAN SMT.S.SANDHYA SRI.BEPIN PAUL SRI.SHALU VARGHESE SRI.S.DEEPAK

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RESPONDENT(S)/RESPONDENT IN I.A:

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1. SANTHAKUMARI, W/O.PANKAJAKSHAN,KANCHEEPURATH HOUSE,EANATHIKARA, VAIKOM TALUK,KOTTAYAM DISTRICT,PIN-686141.

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2. VARNINI, W/O.MUKUNDAN,MOZHIKKODATHU HOUSE,BRAHMAMANGALAM KARA, CHEMBU VILLAGE,VAIKOM TALUK,KOTTAYAM DISTRICT,PIN-686141.

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R1 BY ADV. SMT.A.T.RENJU

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 07-03-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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K.V.

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OP(C).No. 601 of 2018 (O)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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EXHIBIT P1 TRUE PHOTOCOPY OF IA NO.3199/2010 IN O.S.NO.892/2008 BEFORE HON'BLE 2ND ADDL SUB COURT,ERNAKULAM
EXHIBIT P2 TRUE PHOTOCOPY OF THE CERTIFIED COPY ISSUED ON REGISTER DT.26.3.2010 OF THE REGISTRAR OF PETITIONS FROM THE HILL POLICE STATION,TRIPUNITHURA
EXHIBIT P3 TRUE PHOTO COPY OF THE JUDGMENT DT 23.8.2017 IN OP(C)NO.748/2015 OF THIS HON'BLE COURT.
EXHIBIT P4 TRUE PHOTOCOPY OF THE IA NO.576/2018 IN OS NO.892/2008 SUB COURT,ERNAKULAM FILED FOR RECALLING AND REOPENING EVIDENCE OF DW2
EXHIBIT P5 TRUE PHOTOCOPY OF THE ADDITIONAL PROOF AFFIDAVIT FILED BY 2ND DEFENDANT SONARATNAN(DW2)-1ST PETITIONER HEREIN BEFORE HON'BLE SUB COURT,ERNAKULAM IN OS NO.892/2018.
EXHIBIT P6 TRUE PHOTOCOPY OF I.A.NO.731/2018 FILED BY PETITIONERS HEREIN/DEFENDANTS 2,4 AND 5 IN O.S.NO.892/2008 TO SUMMON ORIGINAL OF PETITION REGISTER FROM HILL PALACE POLICE STATION
EXHIBIT P7 TRUE PHOTOCOPY OF OBJECTION DT 15.02.2018 FILED BY COUNSEL FOR 1ST RESPONDENT BEFORE COURT BELOW,IN IA NO.731/2018 (EXT P6)BEFORE THE HON'BLE SUB COURT,ERNAKULAM
EXHIBIT P8 TRUE PHOTOCOPY OF THE ORDER DT 15.06.2018 OF THE HON'BLE 2ND ADDL SUBORDINATE JUDGE'S COURT,ERNAKULAM IN IA NO.731/2018(EXT P6).

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RESPONDENTS EXHIBITS: NIL

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/TRUE COPY/ K.V. P.S.TO JUDGE 12.03.2018

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ALEXANDER THOMAS, J.

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O.P(C).No.601 Of 2018

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Dated this the 7th day of March, 2018.

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The main prayer in this Original Petition (Civil) filed under the enabling provisions in Article 227 of the Constitution of India is as follows:

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“Call for the records leading to Exhibit P8 order from the court below and set aside the same and allow Exhibit P6 application as prayed for.”

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Heard Sri.M.P.Ramnath, learned counsel for the

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petitioners/defendants 2, 4 & 5 and Smt.A.T.Renju, learned counsel for the 1st respondent/plaintiff.

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The order under challenge is the one at Ext.P-8 dated 15.2.2018 rendered by the trial court concerned (II Additional Sub Court, Ernakulam), whereby Ext.P-6 application filed by the petitioner for summoning of the original petition register from the Police Station concerned, has been rejected.

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Shorn of all the details, it can be seen that Ext.P-2 herein/B-39 produced before the court below, is the certified copy from the Thripunithura Hill Place Police Station in respect of the

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O.P(C).No.601 Of 2018

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recording in the petition register in the Police Station, whereby, when during 1999 the 2nd respondent had allegedly created problems with the 1st petitioner herein as well as mother (Karthiayani) filing police complaints on 25.7.1999 before the Hill Palace Police Station, Thripunithura and the noting that the dispute is essentially that the daughter wants more share in the family property and the complainants are basing upon the will, and a copy of the will was given to the 2nd respondent herein and the matters were recorded in the register of petition in the Police Station signed by the parties in the Police Station and the Police had instructed the parties to raise the issue before the court, etc. The 2nd respondent when examined as DW-1 in cross-examination admitted that there were issues upon which she was called to the Police Station but denied the receipt of copy of the Will. During 2010, the evidence of the parties were over. According to the petitioner, in such circumstances, he was constrained to produce copy of the petition register as Ext.P-2 herein. On 14.2.2018, Ext.B-39 was marked subject to objection that it can be marked subject to further proof and accordingly, on 14.2.2018, the

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O.P(C).No.601 Of 2018

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petitioner had filed Ext.P-6 I.A.No.731/2018 seeking summoning of the original records of the same Police Station as the 1 st respondent/plaintiff had objected to the admissibility of Ext.B-39. According to the petitioner the need for such an application had arisen only on 14.2.2018 when the court below required further proof for the same. Now as per Ext.P-8 order dated 5.2.2018, the court below has dismissed Ext.P-6 application on the ground that it is belated, etc.

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The respondent would contend that the plea of the petitioners is only to protract the proceedings and that even now they have not sought to summon any official witness to prove Ext.B-39 and that at any rate, even if the plea of the petitioners is to be considered, they should be liable to pay proper costs for the delayed approach. Further, it is urged by Smt.A.T.Renju, learned counsel for R-1/plaintiff that unless the petitioners get permission from the trial court for summoning and examining the official witness concerned to prove the contents of Ext.B-39 records maintained by the Police Station concerned, the entire process is futile and therefore, it is clear that the petitioners are using the present plea only as a ploy to unnecessarily delay and protract the proceedings further.

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O.P(C).No.601 Of 2018

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Having regard to the contentions of both sides, this Court is

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of the view that it is for the petitioners/defendants to take definite stand as to whether or not summoning and examination of official witness concerned in respect of Ext.B-39 document is required in the facts of this case or whether marking of Ext.B-39 document alone would suffice. This the Court would observe only on the basis of the rival contentions of both sides in this regard and it is not right and proper for this Court to enter into those controversies and that too sitting in constitutional supervisory jurisdiction and more particularly when the matter is before the trial court and the trial court should ordinarily be the arbiter of any such decisions on any such pleas/applications that may be posed in that regard by the parties concerned. If the petitioners take a stand that summoning and examination of the official witness concerned in respect of Ext.B-39 is necessary in the facts of this case, then they are given time by 10 days from the date notified for receiving a certified copy of this judgment to make such applications in that regard before the trial court along with requisite supporting affidavit. In the light of these aspects and more particularly, going by the nature of the contentions raised by both sides, this Court is of the view that the matter requires a second look by the trial court through a remit. Only

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O.P(C).No.601 Of 2018

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for facilitating such a remit and reconsideration, the impugned Ext.P-8 order dated 15.2.2018 will stand set aside and Ext.P-6 I.A.No.731/2018 will stand restored to the file of the trial court. In case the petitioners file an application for summoning the official witness concerned in respect of Ext.B-39 within the above said time limit stipulated by this Court, then the trial court concerned will consider Ext.P-6 I.A afresh along with the said application and after hearing both sides, will take a considered decision thereon. Further, it is made clear that a decision should be taken by the trial court on Ext.P-6 I.A even if the petitioners does not opt to make any separate application for summoning and examining the official witness concerned as stated above. However, it is equally made clear that if on the other hand, the petitioners does not make any such application for summoning the official witness in respect of Ext.B-39 records, then he will not be permitted to seek any further opportunity to file any such application subsequently as it would amount to nothing but an attempt to protract the proceedings unnecessarily, which in turn would be an abuse of the process of the court. It is for the petitioners to take a definite stand on the issue relating to the legal necessity or otherwise regarding summoning of the official witness concerned, within the above said time limit. If the

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O.P(C).No.601 Of 2018

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petitioners file any such fresh application for summoning official witness, the respondent/plaintiff should certainly be given necessary time to file counter/written objections to such application, by ten days. Orders as directed herein should be rendered independently by the trial court after hearing both sides without much delay preferably within a period of 3 weeks thereafter and untrammelled by the view taken in the impugned order, which has now been set aside. As regards the contention raised by the respondent/plaintiff that the petitioners should be made to pay cost, etc., it is made clear that it will be open to the trial court, after hearing both sides to decide whether any such application/s, of the petitioners is to be considered only subject to payment of costs.

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The parties will produce a certified copy of this judgment before the court below concerned for necessary information.

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With these observations and directions, the above Original Petition (Civil) will stand finally disposed of.

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Sd/-

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ALEXANDER THOMAS, Judge.

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Bkn/-

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//True copy // P.A to Judge.

Sonaratnan v. Santhakumari

Case brief

What is this about?

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Sonaratnan v. Santhakumari

Case brief

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