Kerala High Court
Rajan vs Vijayalakshmi on 15 February, 2019
Author: A.Hariprasad
Bench: A.Hariprasad
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.HARIPRASAD
FRIDAY ,THE 15TH DAY OF FEBRUARY 2019 / 26TH MAGHA, 1940
RP.No. 57 of 2018 IN OP(C). 585/2017
AGAINST THE JUDGMENT DATED 25-08-2017 IN OPC 585/2017 of HIGH
COURT OF KERALA
PETITIONER/PETITIONER:
RAJAN
AGED 43 YEARS, S/O. CHAMI EZHUTHASSAN, NELLIKURUSSI,
MULANJUR, OTTAPALAM TALUK,
PALAKKAD DISTRICT.
BY ADV. SRI.P.JAYARAM
RESPONDENTS/RESPONDENTS:
1 VIJAYALAKSHMI
AGED 64 YEARS, D/O.CHAMI EZHUTHASSAN, NELLIKURUSSI,
MULANJUR - 679 511, OTTAPALAM TALUK, PALAKKAD
DISTRICT.
2 SREEKUMAR
AGED 62 YEARS,S/O. CHAMI EZHUTHASSAN, NELLIKURUSSI,
MULANJUR - 679 511, OTTAPALAM TALUK, PALAKKAD
DISTRICT.
3 VASUDEVAN
AGED 58 YEARS,S/O. CHAMI EZHUTHASSAN, NELLIKURUSSI,
MULANJUR - 679 511, OTTAPALAM TALUK, PALAKKAD
DISTRICT.
4 AMBUJAN
AGED 54 YEARS, D/O. CHAMI EZHUTHASSAN, NELLIKURUSSI,
MULANJUR - 679 511, OTTAPALAM TALUK, PALAKKAD
DISTRICT.
RP.No. 57 of 2018 IN OP(C). 585/2017
2
5 KRISHNADAS
AGED 52 YEARS, S/O.CHAMI EZHUTHASSAN, NELLIKURUSSI,
MULANJUR - 679 511, OTTAPALAM TALUK, PALAKKAD
DISTRICT.
6 CHANDRIKA
AGED 50 YEARS,D/O.CHAMI EZHUTHASSAN, NELLIKURUSSI,
MULANJUR - 679 511, OTTAPALAM TALUK, PALAKKAD
DISTRICT.
7 MOHANKUMAR
AGED 48 YEARS, S/O.CHAMI EZHUTHASSAN, NELLIKURUSSI,
MULANJUR - 679 511, OTTAPALAM TALUK, PALAKKAD
DISTRICT.
BY ADV. SRI.SANTHEEP ANKARATH
THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 15.02.2019,
THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
RP.No. 57 of 2018 IN OP(C). 585/2017
3
JUDGMENT
Heard the learned counsel appearing on both sides.
2. Petitioner is the plaintiff in O.S.No.109 of 2013 before the Court of Munsiff, Ottapalam. Respondents are the defendants. Suit is one for partition. Petitioner, being a practicing lawyer at Ottapalam, filed a transfer petition before the District Judge, Palakkad as T.O.P. No.282 of 2015. That application was dismissed by the District Judge, Palakkad, against which O.P.(C).No.585 of 2017 was filed before this Court. On 25.8.2017, learned counsel for the petitioner submitted that the matter may be dismissed as withdrawn. Recording the submission, the original petition was dismissed by this Court.
3. Learned counsel for the review petitioner now contends that it was a mistaken submission by some other lawyer on behalf of the petitioner's counsel. The parties are hotly contesting the case, is the submission.
4. Learned counsel for the respondents seriously opposed the petition, contending that intention of the petitioner is only to prolong the litigation, wherein he has no valid contentions. According to the learned counsel for the respondents, a Will was RP.No. 57 of 2018 IN OP(C). 585/2017 4 executed by the predecessor in title of the properties in favour of the 7th respondent and the plaintiff/petitioner has no right in the property. However, that is a matter to be decided at the time of trial. It is the submission of the learned counsel for the respondents that the burden to prove the Will lies on the 7 th respondent for which he will have to examine the execution witnesses before the court. The petitioner is trying to block their evidence by delaying. It is therefore contended by the learned counsel for the respondents that the application should be dismissed.
5. It may be an embarrassment for a practicing lawyer to appear as a witness before a local court where he is practicing. At the same time, the apprehension of the respondents that there will be protraction of the litigation also should be addressed.
Having regard to the facts and circumstances, following directions are issued:
Learned Munsiff, Ottapalam shall proceed with trial in O.S.No.109 of 2013 and record evidence of the defendant who propound the Will and that of the witnesses to prove the Will under Section 68 of the Evidence Act. The trial shall be conducted as scheduled by the court below without any change. RP.No. 57 of 2018 IN OP(C). 585/2017 5 After recording the evidence of the defendants and their witnesses, if the plaintiff wants to adduce any evidence, the case shall be sent to the Munsiff Court, Pattambi for further trial. In effect, if the plaintiff expresses his intention to adduce rebuttal evidence, the court shall record it and then it will be deemed that the case remains transferred to Munsiff Court, Pattambi, for further trial and disposal. In that event, learned Munsiff, Ottapalam shall send the entire records to the Munsiff's Court, Pattambi and fix a date for appearance of the parties before the Munsiff Court, Pattambi, for trial and disposal. If the records are received by the Munsiff, Pattambi, he shall receive the case on the file of that court as if it was transferred under Section 24 CPC and dispose of the case on merits.
All pending interlocutory applications will stand dismissed.
Sd/-
A.HARIPRASAD JUDGE