Kerala High Court
Lovelyn Barnabi Aged 55 Years vs Lavelyn Antony Michael
Author: Thomas P. Joseph
Bench: Thomas P.Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH
WEDNESDAY, THE 30TH DAY OF JANUARY 2013/10TH MAGHA 1934
OP(C).No. 412 of 2013 (O)
PETITIONER/PETITIONER:
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LOVELYN BARNABI AGED 55 YEARS
D/O.DAMIANOSE,NO.9, 2ND MAIN ROAD
MEENA ESTATE, SOWRI PALAYAM, COIMBATORE- 641 028
REP. BY HER POWER OF ATTORNEY HOLDER
RICHARD STANLY SAVIO LUIZ,
S/O.GILORY JOHN LOUIZ AGED 33 .
BY ADVS.SRI.G.KRISHNAKUMAR
SRI.TITTO THOMAS
SMT.P.M.NASEEMA
SRI.K.A.ANI JOSEPH
RESPONDENTS/CR.PETITIONERS:
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1. LAVELYN ANTONY MICHAEL
S/O.DAMIANOSE,NO.4, KARTHIKA NAGAR
IMBERIPALAYAM, COIMBATORE.
2. JAMES @ THANKACHAN,
S/O.BIYATRESS, HOUSE NO.350
CHERTHALA SOUTH PANCHAYATH,WARD NO.6
CHERTHALA SOUTH VILLAGE.
3. SOLOMAN,
S/O.THRESSIA,HOUSE NO.381,CHERTHALA SOUTH PANCHAYATH
WARD NO.6,CHERTHALA SOUTH VILLAGE.
4. THRESSYA,
CHERTHALA SOUTH PANCHAYATH,WARD NO.6
CHERTHALA SOUTH VILLAGE.
(...2)
OP(C).No. 412 of 2013 (2)
5. MERLYN DAMIYANOS
3/13 PARADISE STREET,MACKAY,AUSTRALIA.
6. PAMELA MOSS,
D/O.DAMIYANOS, JETHWA, MANSION
NEAR PRATHAP PALACE, JMNANAGAR.
7. IAN D.
S/O.DAMIYANOS, S-BLOCK,117/1
5TH MAIN ROAD, ANNANAGAR, CHENNAI.
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 30-01-
2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:-
OP(C).412/13
APPENDIX
PETITIONERS' EXHIBITS:-
EXT.P1:- TRUE COPY OF THE I.A.NO.328/10 IN OS NO.8/84 ON THE FILE OF
SUB COURT, CHERTHALA.
EXT.P2:- TRUE COPY OF THE ORDER DATED 31/1/2011 IN IA.NO.328/10 IN
OS NO.8/84 ON THE FILE OF SUB COURT, CHERTHALA.
EXT.P3:- TRUE COPY OF THE JUDGMENT DATED 28/02/2011 IN
O.S.NO.8/84 ON THE FILE OF SUB COURT, CHERTHALA.
EXT.P4:- TRUE COPY OF THE I.A.NO.486/11 IN O.S.NO.8/84 ON THE FILE
OF SUB COURT, CHERTHALA.
EXT.P5:- TRUE COPY OF THE WITNESSES LIST IN EXT.P4.
EXT.P6:- TRUE COPY OF THE I.A NO.407/12 OS NO.8/84 ON THE FILE OF
SUB COURT, CHERTHALA.
EXT.P7:- TRUE COPY OF THE ORDER DATED 4/9/2012 IN I.A.NO.407/12 OS
NO.8/84 ON THE FILE OF SUB COURT, CHERTHALA.
RESPONDENTS' EXHIBITS:-NIL
//TRUE COPY//
P.A. TO JUDGE
OKB/-
THOMAS P. JOSEPH, J.
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Original Petition (civil) No.412 of 2013
==============================
Dated this the 30th day of January, 2013
JUDGMENT
Petitioner is a legal representative of the original plaintiff who filed O.S. No. 8 of 1984 in the Sub Court, Cherthala. Original plaintiff died on 31.12.2009. It is said that petitioner and respondents 1, 5, 6 and 7 are the legal representatives. First respondent filed I.A No. 328 of 2010 to implead him as additional plaintiff on the strength of a Will (allegedly) executed by the deceased plaintiff. On that application learned Sub Judge passed Ext.P2, order dated 31.01.2011 impleading first respondent as additional plaintiff. Petitioner who claimed to have been abroad during the relevant time filed Ext.P4, application to set aside/review Ext.P2, order. On that application, learned counsel submits, evidence of petitioner was recorded. First respondent filed Ext.P5, witness list. On that application learned Sub Judge passed Ext.P7, order to issue summons to the witnesses. That order is under challenge. O.P.(C) No.412 of 2013 -: 2 :-
2. Learned counsel submits that though in Ext.P2, order it is observed that registered notice issued to the petitioner (and others) on I.A. No. 328 of 2010 was not returned and hence it is to be presumed that they were served on I.A. No. 328 of 2010, no such notice was served on petitioner who was abroad at the relevant time as revealed by the passport petitioner has produced in the trial court. It is also argued that it is without complying with Sec.68 of the Evidence Act that based on the Will, learned Sub Judge allowed I.A. No. 328 of 2010. According to the learned counsel, Ext.P2, order is liable to be reviewed as requested in Ext.P4, application. It is also the submission of learned counsel that attempt of the first respondent appears to be to adduce evidence about (alleged) execution of the Will. Learned counsel submits that question of adducing evidence regarding execution of the Will would arise only in an enquiry in that regard after Ext,P2, order is set aside or reviewed.
3. Petitioner can urge the above arguments before the learned Sub Judge. It is for the learned Sub Judge to ascertain the point sought to be proved by examining witnesses summoned O.P.(C) No.412 of 2013 -: 3 :- by the first respondent and decide whether evidence of those witnesses is relevant at this stage and could be recorded without setting aside/reviewing Ext.P2, order.
Directing the learned Sub Judge to consider the above, this original petition is disposed of.
Sd/-
THOMAS P.JOSEPH, JUDGE smv //True copy// P.A. To Judge