Allowed

Sadanandan v. Saraswathy

Kerala HC3 Jul 2019OP(C)/342/2019

Case brief

AI extract

What is this about?

This single-judge order set aside the lower court's dismissal of an application seeking to compare a disputed 1991 document with signatures from a later 2011 suit. The bench held that contemporaneous documents are not mandatory if none exist in possession, and the expert should determine if an opinion is feasible. The petition was disposed of directing the lower court to reconsider.

What did the court decide?

Set aside the order dismissing IA Nos. 15318/2018 and 16492/2018; directed the Court below to consider the applications and pass appropriate orders expeditiously.

Sadanandan Vs Saraswathy — Contract and Commercial Disputes | Kerala HC (2019)

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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 SUNIL THOMAS

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WEDNESDAY, THE 03RD DAY OF JULY 2019 / 12TH ASHADHA, 1941

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OP(C).No.342 of 2019

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AGAINST THE ORDER DATED 18/12/2018 IN IA.NO.15318/18 AND IA NO.16492/2018 IN OS 98/2011 of II ADDITIONAL MUNSIFF COURT, THRISSUR

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PETITIONER/PETITIONER/PLAINTIFF:

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SADANANDAN

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AGED 51 YEARS S/O.RAMACHANDRAN, THACHAMPILLY HOUSE, VELUTHUR VILLAGE, KAIPPILLI DESOM, THRISSUR TALUK, THRISSUR DISTRICT.

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BY ADVS. SRI.SANTHOSH P.PODUVAL SMT.CHITHRA.S.BABU SMT.R.RAJITHA SRI.R.N.SANDEEP

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RESPONDENTS/RESPONDENTS/DEFENDANTS 2 TO 5:

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1 SARASWATHY, W/O.LATE THACHAMPILLY KARUPPAN, VELUTHUR VILLAGE, KAIPPILLI DESOM, THRISSUR TALUK, THRISSUR DISTRICT.

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2 T.K. SUNITHA, D/O.LATE THACHAMPILLY KARUPPAN, VELUTHUR VILLAGE, KAIPPILLI DESOM, THRISSUR TALUK, THRISSUR DISTRICT.

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3 SINDHU ASOKAN D/O.LATE THACHAMPILLY KARUPPAN, VELUTHUR VILLAGE, KAIPPILLI DESOM, THRISSUR TALUK, THRISSUR DISTRICT.

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4 BINDU.T.K D/O.LATE THACHAMPILLY KARUPPAN, VELUTHUR VILLAGE, KAIPPILLI DESOM, THRISSUR TALUK, THRISSUR DISTRICT. BY ADVS.

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SRI.R.SANJITH SMT.C.S.SINDHU KRISHNAH

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 03.07.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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OP(C).No.342 of 2019

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JUDGMENT

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The petitioner herein is the plaintiff in O.S.No.98/2011 of II Additional Munsiff Court, Thrissur, which was a suit for mandatory injunction on the basis of an agreement allegedly entered into between the plaintiff and the 1^st defendant. The 1^st defendant died and his legal

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heirs were brought on record as additional defendant nos. 2 to 4. They filed the written statement denying the execution of the document and the signature. An application was filed for forwarding the disputed document with contemporaneous documents for expert opinion, it was dismissed by the Court below, which was the subject matter of O.P.(C)No.649/2016 of this Court. By Ext.P5 order in that original petition this Court permitted the petitioner herein to file

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a fresh application to forward the disputed document along with contemporaneous documents. It

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OP(C).No.342 of 2019

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was also observed by this Court that, the documents that was put for comparison were the documents which were the subject matter of a suit of the year 2011. This Court had observed that, comparison will have to with reference to the some documents executed during the period itself.

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2. The Court below dismissed the subsequent application filed by the petitioner herein as I.A.No.15318/2018 by Ext.P9 order, which is impugned in the original petition.

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3. The reason stated by the Court below was that, the disputed document of the year 1991. The petitioner wanted to summon the documents produced in O.S.No.73/1995 and O.S.No.364/1995 and to forward those documents which contains the signature of the 1^st defendant for comparison with the disputed document. The Court below held that, since it was not a contemporaneous document, it

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OP(C).No.342 of 2019

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would not have been possible for a expert to give an opinion.

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4. Though there is no dispute that, it would have been ideal, if contemporaneous admitted documents are forwarded of comparison with the disputed document. However, if the plaintiff is not in possession of any such documents, it will not be justifiable, if an opportunity to attempt to establish the genuineness or otherwise the disputed document is denied. It is for the expert to clarify whether without producing contemporaneous documents an effective expert opinion will not be possible. Deciding the issue by assuming that the documents, produced along with the suits which are stated to be of the year 2011, will not serve the purpose.

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5. Having considered this, I am inclined to

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OP(C).No.342 of 2019

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set aside the order and direct the Court below to consider I.A.Nos.15318/2018 & 16492/2018 on the

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basis of the observations made above and to pass appropriate orders as expeditiously as possible.

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The original petition (civil) is disposed of

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as above.

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Sd/-

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SUNIL THOMAS JUDGE

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VPK

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OP(C).No.342 of 2019

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXHIBIT P1	TRUE COPY OF PLAINT IN O.S.98/2011 ON THE FILE OF IIND ADDITIONAL MUNSIFF COURT, THRISSUR.
EXHIBIT P2	TRUE COPY OF WRITTEN STATEMENT IN O.S.98/2011 ON THE FILE OF IIND ADDITIONAL MUNSIFF COURT, THRISSUR.
EXHIBIT P3	TRUE COPY OF I.A.3232/16 IN O.S.98/2011 ON THE FILE OF IIND ADDITINAL MUNSIFF COURT, THRISSUR.
EXHIBIT P4	TRUE COPY OF ORDER DATED 19/2/16 IN IA.3232/16 IN O.S.98/2011 ON THE FILE OF IIND ADDITIONAL, MUNSIFF COURT, THRISSUR.
EXHIBIT P5	TRUE COPY OF ORDER DATED 17/9/18 IN O.P.629/16 BEFORE THIS HON'BLE COURT.
EXHIBIT P6	TRUE COPY OF IA.15318/18 IN O.S.98/2011 BEFORE THE IIND ADDITIONAL MUNSIFF COURT, THRISSUR.
EXHIBIT P7	TRUE COPY OF IA.16492/18 IN O.S.98/2011 BEFORE THE IIND ADDITIONAL MUNSIFF COURT, THRISSUR.
EXHIBIT P8	TRUE COPY OF COUNTER FILED BY RESPONDENT IN I.A.15318/18 IN O.S.98/11 BEFORE THE II ADDITIONAL MUNSIFF COURT, THRISSUR.
EXHIBIT P9	TRUE COPY OF ORDER DATED 18/12/2018 IN I.A.15318/18 AND IA.16492/18 IN O.S.98/11 BEFORE THE II ADDITIONAL MUNSIFF COURT, THRISSUR.
	// TRUE COPY //
VPK	PA TO JUDGE

Sadanandan v. Saraswathy

Case brief

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Sadanandan v. Saraswathy

Case brief

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