Kerala High Court
Sri.T.K.Ramachandran vs C.H.Kunhikrishna Kurup
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
TUESDAY, THE 12TH DAY OF DECEMBER 2017/21ST AGRAHAYANA, 1939
OP(C).No. 3330 of 2017 ()
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I.ANO.619/2017 IN O.S.NO.12/2015 OF SUBORDINATE JUDGES
COURT, KOYILANDY.
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PETITIONER(S)/PETITIONERS/PLAINTIFFS:
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1. SRI.T.K.RAMACHANDRAN,
AGED 48 YEARS, S/O. BALAN, SECRETARY, SANTI NIKETHAN
SECONDARY SCHOOL SOCIETY, TIRUVALLUR,
REGN. NO.82/1962, A SOCIETY REGISTERED UNDER SOCIETIES
REGISTRATION ACT 1860, THAZHEKELOTH, POST: THIRUVALLUR,
VADAKARA TALUK, THIRUVALLURAMSOM, DESOM,
KOZHIKODE -673 541.
2. MANIKOTH RAGHAVAN,
AGED 68 YEARS, S/O. CHATHU, VICE PRESIDENT,
SANTI NIKETHAN SECONDARY SCHOOL SOCIETY, TIRUVALLUR,
REGN. NO. 82/1962, A SOCIETY REGISTERED UNDER SOCIETIES
REGISTRATION ACT 1860. MANIKOTH HOUSE, PARAVANTHALA,
NUTSTREET POST, VADAKARA AMSOM DESOM, VADAKARA-673 104.
3. N. GIRISH,
AGED 38 YEARS, S/O. KRISHNAN, GOVERNING COUNCIL MEMBER,
SANTI NIKETHAN SECONDARY SCHOOL SOCIETY, TIRUVALLUR,
REGN. NO. 82/1962, A SOCIETY REGISTERED UNDER SOCIETIES
REGISTRATION ACT 1860, NOLATHA HOUSE, POST : THIRUVALLUR,
VADAKARA TALUK, THIRUVALLUR AMSOM, DESOM,
KOZHIKODE-673 541.
4. NARAYANAN P.M,
AGED 59 YEARS, S/O. POKKAN, MUCHILOTTHAZHEKUNNI,
PARAVANTHALA, P.O. NUTSTREET, VADAKARA AMSOM DESOM,
KOZHIKODE-673 104.
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OP(C).No. 3330 of 2017 ()
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5. PRAJITHKUMAR C.,
AGED 42 YEARS, S/O. POKKU, THODUVAYAIL, POST THIRUVALLUR,
VADAKARA TALUK, THIRUVALLUR AMSOM, DESOM,
KOZHIKODE-673 541.
BY ADVS.SRI.SHYAM PADMAN
SRI.C.M.ANDREWS
SRI.P.T.MOHANKUMAR
SMT.BOBY M.SEKHAR
SMT.NEETHU RAVIKUMAR
SMT.REVATHY P. MANOHARAN
RESPONDENT(S)/RESPONDENTS/DEFENDANTS:
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1. C.H.KUNHIKRISHNA KURUP,
S/O. KANARA KURUP, MANAGER, SANTI NIKETHAN SECONDARY
SCHOOL SOCIETY, TIRUVALLUR, REGN. NO.82/1962, A SOCIETY
REGISTERED UNDER SOCIETIES REGISTRATION ACT, 1860
RESIDING AT 'SIVOHAM HOUSE' MALAPARAMBA
HOUSING COLONY, CHEVAYUR P.O, CHEVAYUR AMSOM DESOM,
KOZHIKODE TALUK-673017.
2. K. BALAKRISHNAKURUP,
AGED 74 YEARS, S/O. KOMATTKUNHIRAMAKURUP, GOVERNING
COUNCIL MEMBER, SANTI NIKETHAN SECONDARY SCHOOL
SOCIETY, TIRUVALLUR, REGN. NO.82/1962, A SOCIETY
REGISTERED UNDER SOCIETIES REGISTRATION ACT, 1860
'DEEPTHI', CHALAPPURAM, KASABA AMSOM DESOM,
KOZHIKODE TALUK-673 002.
3. T.P. RADHAKRISHNAN,
AGED 60 YEARS, S/O. APPAKURUP, KOLLANTEPARAMBATH,
NUTSREET(PO),VATAKARAAMSOMDESOM, VATAKARA TALUK,
KOZHIKODE 673 104.
4. SASI KUMAR P.K,
AGED 46 YEARS, S/O. KUNHIKRISHNAKURUP, 'PARANKKOTT'
VELLOOKKARA, CHANIYAMKADAV (P.O), THIRUVALLUR AMSOM
VELLOOKKARA DESOM, VATAKARA TALUK, KOZHIKODE-673 541.
5. RAVEENDRAN K,
AGED 57 YEARS, S/O. KOMATTKUNHIRAMAKURUP,
'SREEPARVATHI', VELLOOKKARA, CHANIYAMKADAV (P.O),
THIRUVALLURAMSOM VELLOOKKARADESOM, VATAKARA TALUK,
KOZHIKODE 673 541.
6. MOIDU HAJI CHUNDAYIL,
AGED 56 YEARS, S/O. MOOSSA HAJI, 'CHUNDAYIL',
KOTTAPPALLY (P.O), VILLYAPALLY, KOTTAPPALLYAMSOMDESOM,
VADAKARA TALUK, KOZHIKODE -673 542.
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OP(C).No. 3330 of 2017 ()
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7. KATTILERY KUHABDULLA ,
AGED 58 YEARS, S/O. ANTHRU, 'KATTILERI' THIRUVALLUR (P.O)
THIRUVALLUR AMSOM DESOM, VATAKARA TALUK,
KOZHIKODE-673 541.
8. KUNHAMMAD M.K,
AGED 50 YEARS,S/O. MOIDU, 'MEETHALEKANDIYIL',
THIRUVALLUR(P.O), THIRUVALLUR AMSOM DESOM,
VATAKARA TALUK, KOZHIKODE-673 541.
9. ASHRAF KANAVATH,
AGED 41 YEARS, S/O. MOITHU HAJI, 'KANAVATH' ,
THIRUVALLUR P.O, THIRUVALLUR AMSOM DESOM,
VATAKARA TALUK, KOZHIKODE-673 541.
10. M V AMMED,
AGED 53 YEARS, S/O. MOITHEEN, 'MALAYANTE VALAPPIL' ,
CHANIYAMKADAV P.O, THIRUVALLUR AMSOM DESOM,
VATAKARA TALUK, KOZHIKODE-673 541.
11. A C MOIDU,
AGED 60 YEARS, S/O. AC ABDULLA HAJI, 'AL-HILAL'
THIRUVALLUR P.O, 673 541. THIRUVALLUR AMSOM DESOM,
VATAKARA TALUK, KOZHIKODE-673 541.
12. JAMAL PUTHIYOTTIL,
AGE AND FATHER'S NAME NOT KNOWN TO THE APPELLANTS,
PUTHIYOTTIL, THODANNUR P.O, VADAKARA, KOZHIKODE-673 541.
13. SANTI NIKETHAN SECONDARY SCHOOL SOCIETY,
THIRUVALLUR, REGN. NO. 82/1962, A SOCIETY REGISTERED
UNDER SOCIETIES REGISTRATION ACT 1860, REP BY ITS
MANAGER C.H. KUNHIKRISHNAKURUP, S/O. KANARA KURUP,
RESIDING AT 'SIVOHAM HOUSE' MALAPARAMBA HOUSING
COLONY, CHEVAYUR P.O, CHEVAYUR AMSOM DESOM,
KOZHIKODE TALUK-673 017.
14. THE DISTRICT EDUCATIONAL OFFICER,
VADAKARAP.O, CADAKARA-673 101.
R1 TO R13 BY ADVS. SRI.BIJU ABRAHAM
SRI.B.G.BHASKAR
R14 BY SENIOR GOVERNMENT PLEADER SRI.SAIGI JACOB PALATTY
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 12-12-2017,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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OP(C).No. 3330 of 2017 ()
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXHIBIT P1 TRUE COPY OF THE PLAINT IN O.S. NO. 12/2015 BEFORE THE
SUBORDINATE JUDGE'S COURT, KOYILANDI.
EXHIBIT P2 TRUE COPY OF WRITTEN STATEMENT OF 6TH RESPONDENT
DATED 14.05.2015 IN O.S. NO. 12/2015 BEFORE THE
SUBORDINATE JUDGE'S COURT, KOYILANDI.
EXHIBIT P3 TRUE COPY OF WRITTEN STATEMENT OF 1ST RESPONDENT
DATED 18.05.2015 INO.S.NO. 12/2015 BEFORE THE SUBORDINATE
JUDGE'S COURT , KOYILANDI.
EXHIBIT P4 TRUE COPY OF THE NOTICE DATED 17.2.2014 ISSUED BY THE 1ST
RESPONDENT TO 1ST PETITIONER.
EXHIBIT P4(A) TRUE COPY OF THE NOTICE DATED 17/02/2014 ISSUED BY THE
1ST RESPONDENT TO 2ND PETITIONER.
EXHIBIT P4(B) TRUE COPY OF THE NOTICE DATED 17/02/2014 ISSUED BY THE
1ST RESPONDENT TO 3RD PETITIONER.
EXHIBIT P4(C) TRUE COPY OF THE NOTICE DATED 17/02/2014 ISSUED BY THE
1ST RESPONDENT TO 4TH PETITIONER.
EXHIBIT P5 TRUE COPY OF THE RECEIPT DATED 26.02.2014 ISSUED BY THE
1ST RESPONDENT TO 1ST PETITIONER.
EXHIBIT P5 (A) TRUE COPY OF THE RECEIPT DATED 26.02.2014 ISSUED BY THE
1ST RESPONDENT TO 2ND PETITIONER.
EXHIBIT P5(B) TRUE COPY OF THE RECEIPT DATED 26.02.2014 ISSUED BY THE
1ST RESPONDENT TO 3RD PETITIONER.
EXHIBIT P6 TRUE COPY OF THE PERSONAL NOTE OF THE 1ST RESPONDENT
DATED 20.10.2014.
EXHIBIT P7 TRUE COPY OF THE I.A. NO. 619/2017 DATED 1.11.2017 FILED BY
THE PETITIONERS IN O.S. NO. 12/2015.
EXHBIT P8 TRUE COPY OF THE COUNTER FILED BY THE RESPONDENTS
IN I.A. NO. 619/2017 DATED 03.11.2017.
EXHIBIT P9 TRUE COPY OF THE ORDER DATED 07.11.2017 OF THE
SUBORDINATE JUDGES COURT, KOYILANDY IN I.A. NO. 619/2017
IN O.S. NO. 12/2015.
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OP(C).No. 3330 of 2017 ()
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EXHIBIT P10 TRUE COPY OF THE JUDGMENT DATED 05.09.2016 IN
OP(C) NO. 2171/2016.
EXHIBIT P11 TRUE COPY OF THE PETITION AND AFFIDAVIT IN I.A. NO. 536/2016
DATED 03.10.2016 FILED IN O.S. NO. 12/2015 BEFORE THE
SUBORDINATE JUDGES COURT, KOYILANDY.
EXHIBIT P12 TRUE COPY OF THE ORDER DATED 16.02.2017 IN RP NO. 163/2017
IN OP(C) NO. 2171/2016.
RESPONDENT(S)' EXHIBITS
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EXHIBIT R1(A):- A TUE COPY OF THE AFFIDAVIT FILED BY THE 1ST
RESPONDENT IN IANO.231/2015 IN O.S.NO,12/2015 ON THE FILES
OF SUB COURT,KOYILANDY DATED 05.4.2015.
EXHIBIT R1(B):- A TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE 1ST
RESPONDENT IN IA.NO.243/2015 IN O.S.NO.12/2015 ON THE
FILES OF SUB COURT, KOYILANDY DATED 10.4.2015.
EXHIBIT R1(C):- A TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE 2ND
RESPONDENT (1ST RESPONDENT HEREIN) IN
WPC.NO.16471/2015 OF THIS HON'BLE COURT DATED 06.6.2015.
EXHIBIT R1(D):- A TRUE COPY OF THE JUDGMENT IN OP(C)NO.2171/2016
DATED 5.09.2016 OF THIS HON'BLE COURT.
EXHIBIT R1(E):- A TRUE COPY OF THE AFFIDAVIT IN SUPPORT OF
RESTORATION APPLICATION FILED IN IA.NO.536/2016IN
O.S.NO.12/2015 ON THE FILES OF SUB COURT,KOYILANDY
DATED 03.10.2016.
EXHIBIT R1(F);- A TRUE COPY OF THE REVIEW PETITION FILED
AS R.P.NO.163/2017 IN O.P(C).NO.2171/2016 OF THIS HON'BLE
COURT.
/TRUE COPY/
PS TO JUDGE
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ALEXANDER THOMAS, J.
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O.P(C).No.3330 Of 2017
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Dated this the 12th day of December, 2017.
JUDGMENT
The order under challenge in this Original Petition (Civil) filed under the enabling provisions in Article 227 of the Constitution of India is the one as per Ext.P-9 rendered by the trial court concerned (Subordinate Judge's Court, Koyilandy) on 7.11.2017 rendered on I.A.No.619/2017 in O.S.No.12/2015, whereby the plea made by the 1 st petitioner/1st plaintiff for sending the documents as per Exts.A-2 series, A-3 series and A-5 to the Forensic Science Laboratory, for expert opinion with regard to the alleged signature of the 1st defendant therein, has been rejected on the ground of delay.
2. Heard Sri.Shyam Padman, learned counsel appearing for the petitioners/plaintiffs, Sri Biju Abraham, learned counsel appearing for respondents 1 to 13 and Sri.Saigi Jacob Palatty, learned Senior Government Pleader appearing for 14th respondent, D.E.O, Vadakara.
3. The petitioners herein are the plaintiffs in the above said O.S.No.12/2015 on the file of the Subordinate Judge's Court, Koyilandy, seeking for a declaration that the General Body meetings pertaining to ::2::
O.P(C).No.3330 Of 2017 defendant No.13 Santi Nikethan Secondary School Society, on 5.2.2015 and thereafter are illegal and unauthorized, and for a permanent prohibitory injunction restraining the defendants from interfering with the functioning and discharge of the duties of the plaintiffs as members of the Society. According to the petitioners, they had filed documents along with the plaint, which is inclusive of documents A-2 series, A-3 series and A-5, which are stated to have been executed by the 1 st defendant. It is the case of the petitioners that among the various defendants, only the defendant No.6 has filed detailed statement, wherein the allegations in the plaint are specifically denied. Defendants 1 to 5 and 7 to 13 have filed separate written statements merely adopting the written statement of the 6 th defendant. According to the petitioners, the procedure adopted by defendants 1 to 5 and 7 to 13 in filing short written statements merely adopting the written statement of defendant No.6 in the instant case is improper and unacceptable inasmuch as no leave was sought for from the court for such adoption process as the Code of Civil Procedure does not contemplate a provision for adoption of pleadings and further that there was no proper verification of the said written statement as contemplated in Order VI Rule 15 of the C.P.C. On this basis, it is contended by the petitioners ::3::
O.P(C).No.3330 Of 2017 that as the above said documents were allegedly executed and signed by the 1st defendant and as there was no proper written statement of the 1 st defendant it is only to be held that there is no effective denial by the 1 st defendant regarding the averments in the plaint that the above said documents were signed by the 1st defendant, etc. That later, the 1 st petitioner has tendered evidence as PW-1 and the above said documents were marked as Exts.A-2 series, A-3 series & A-5 and it is only during his cross-examination on behalf of the counsel for the 1 st defendant that it was suggested that the above said documents as per Exts.A-2 series, A-3 series & A-5 were not singed by the 1 st defendant. According to the petitioners, it was only at that point of time there was necessity on the part of the petitioners to take steps for subjecting the above said documents for handwriting analysis by expert of the Forensic Scientific Laboratory and it is in that regard that Ext.P-7 application (I.A.No.619/2017 in the Original Suit) was filed by the petitioners seeking directions to the trial court to ensure that the above said documents are subjected to expert handwriting analysis of the FSL, Kannur. It is this plea as per Ext.P-7 that has been rejected by the court below as per the impugned Ext.P-9 order, solely on the ground of alleged delay.
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O.P(C).No.3330 Of 2017
4. The only issue that has to be considered is as to whether there was any significant delay of belated approach on the part of the petitioners in making the request as per Ext.P-7 application. This Court is not now examining the issue as to whether the written statement filed on behalf of defendants Nos.1 to 5 and 7 to 13 are in any manner improper or unacceptable, for all those are matters which could be raised by the plaintiffs before the court below. At this point of time, the only question that has to be considered in a petition filed under Article 227 of the Constitution of India is whether there was significant delay on the part of the petitioners. True that, the 1 st defendant had filed affidavit on I.A filed by the plaintiffs, wherein he has specifically denied his signatures in the above said documents. But no such pointed denial has been made in the written statement of D-1, filed in the Original Suit and therefore the plaintiffs cannot be found fault with, for taking the stand that they need not make a application for sending the documents for expert handwriting analysis, presumably due to the legal advise obtained in that regard. So it cannot be held that there was any grave laches or delay on the part of the petitioners in that regard. That apart, the issue as to whether the signatures in the above said documents are in fact made by the 1 st defendant or not is a very serious matter, which ::5::
O.P(C).No.3330 Of 2017 should be examined by the court below. The learned counsel appearing for the petitioners would then pointed out that the above said affidavit filed at the stage of consideration of I.A cannot be termed as pleadings as envisaged in Order VI Rule 1 of the C.P.C. Without getting into that main controversy, it is to be noted that the fact of the matter is that the above said aspect regarding the alleged execution of those documents is a serious aspect ought to have been considered by the court below and in the facts and circumstances of this case, it cannot be said that the plea made by the petitioners is very belated.
5. Sri.Biju Abraham, learned counsel appearing for respondents/defendants 1 to 13 would submit that the 1 st defendant is aged more than 90 years and that the attempt made by the petitioners is only to protract the trial and that because of the serious ailments suffered by the 1st defendant the court below has directed that the evidence of the 1st defendant is to be taken through the Advocate Commissioner appointed by the court below and an Advocate has already appointed as Commissioner in that regard by the court below.
Sri.Shyam Padman, learned counsel appearing for the petitioners, would vehemently deny that there is any attempt to protract the proceedings and would submit that the evidence of the 1 st defendant may be ::6::
O.P(C).No.3330 Of 2017 recorded by the Advocate Commission without any further delay even preferably within a week or so and that if the 1 st defendant in his cross- examination pointedly denies his alleged execution of any of the said documents, then only those documents need be send for expert analysis to the FSL. Further it is submitted by the learned counsel appearing for the petitioners that the said submission made by him on behalf of the petitioners is without prejudice to the contention of the petitioners that there are no proper pleadings submitted by defendants 1 to 5 & 7 to 13 and that in the absence of necessary pleas, they are barred from leading evidence on this factual issue, etc.
6. In the light of the above said aspects, this Court is of the view that Ext.P-9 requires interdiction. Accordingly, it is ordered that the impugned order at Anx.A-9 is set aside. It is further ordered that the evidence of the defendant No.1, who is now aged more than 90 years, should be recorded by the Advocate Commissioner without any further delay. The Advocate Commissioner is directed to ensure that expeditious steps in that regard is taken after consultation with the Advocates appearing for the respective parties and it should be ensured that the evidence of D-1 is duly completed before 15.1.2018. If the 1 st defendant pointedly denies the execution of the above said documents ::7::
O.P(C).No.3330 Of 2017 in the cross examination, then the court below will allow the plea made by the petitioners in Ext.P-7 to send the documents concerned for expert handwriting analysis by the FSL concerned. It is made clear that none of the observations made by this Court in this judgment shall even be remotely considered as an expression of opinion on the part of this Court regarding the merits of the controversy and in regard to the matters about the sufficiency or otherwise of the pleadings of the defendants. All those issues are fully left open to be considered by the trial court in appropriate manner known to law.
With these observations and directions, the Original Petition (Civil) stands finally disposed of.
Sd/-
ALEXANDER THOMAS, Judge.
Bkn/-
// True copy // P.A to Judge.