IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
TUESDAY, THE 5TH DAY OF JANUARY 2021 / 15TH POUSHA, 1942
OP(C).No.18 OF 2021
AGAINST THE ORDER DATED 17.12.2020 OF PRINCIPAL MUNSIFF'S COURT,
THIRUVANANTHAPURAM IN IA NO.6/2020 IN OS 2080/2011
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PETITIONER/PLAINTIFF:
JOHN ANGELO PERIERA, AGED 62 YEARS,
S/O. MATHEW PERIERA, RESIDING AT SRA 19,
TC 12/1079, BARTON HILL, LAW COLLEGE ROAD,
VANCHIYOOR, THIRUVANANTHAPURAM, REPRESENTED BY HIS
POWER OF ATTORNEY HOLDER, VINCENT PERIERA,
AGED 70 YEARS, S/O. MATHEW PERIERA, SRA 19,
TC 12/1079, BARTON HILL, LAW COLLEGE ROAD,
VANCHIYOOR, THIRUVANANTHAPURAM, PIN-695 035
BY ADVS.
SRI.GOPAKUMAR R.THALIYAL
SRI.S.VENUGOPAL
RESPONDENTS/DEFENDANTS:
1 DR.MOLIN MATHEW
AGED 72 YEARS
W/O. MATHEW PHILIP, SRA 18, T.C. 12/1078,
BARTON HILL, LAW COLLEGE ROAD,
THIRUVANANTHAPURAM, PIN-695 035.
2 DAVID FERNANDEZ,
AGED 61 YEARS, S/O. GEORGE FERNNDEZ, SRA 18,
T.C. 12/1078, BARTON HILL, LAW COLLEGE ROAD,
THIRUVANANTHAPURAM, PIN-695 035.
3 CHRISRTY FIGARDO, AGED 67 YEARS,
S/O GEORGE FERNANDEZ, SRA 10D,
TC 12/6107, BARTON HILL, LAW COLLEGE ROAD,
THIRUVANANTHAPURAM, PIN - 695035.
4 MATHEW PERIERA,
AGED 106 YEARS, S/O. SALVATHOOR PERIERA, SRA 19,
TC 12/1079, BARTON HILL, LAW COLLEGE ROAD,
THIRUVANANTHAPURAM, PIN-695035.
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 05.01.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
SATHISH NINAN, J.
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O.P.(C) No.18 of 2021
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Dated this the 5th day of January, 2021
JUDGMENT
The dismissal of an application seeking to examine the second defendant in the suit as a witness, is under challenge by the plaintiff.
2. The second defendant who is sought to be examined is claimed to be an attesting witness of a Will executed by the father of the plaintiff. The testator is alive and is the additional 4 th defendant in the suit. As noticed by the trial court, examination of a witness to the Will of which the testator is still alive, is irrelevant and unnecessary.
3. So also, no extra ordinary circumstances are made out necessitating the examination of the opposite side as a witness. The suit is for injunction simplicitor filed by the plaintiff in his capacity as the son of the 4 th additional defendant since due to old age the father is unable to institute the proceedings, and not on the O.P.(C) No.18 of 2021 -: 2 :- strength of the Will. The court below was right in dismissing the application.
The original petition lacks merits and is accordingly dismissed.
Sd/-
SATHISH NINAN JUDGE kns/-
//True Copy// P.S. to Judge OP(C).No.18 OF 2021 APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE PLAINT IN O.S. NO.
2080/2011 DATED 01.12.2011 ON THE FILES OF THE PRINCIPAL MUNSIFF'S COURT, THIRUVANANTHAPURAM.
EXHIBIT P2 TRUE COPY OF THE PARTITION DEED NO.
1004/2003 DATED 15.03.2003 OF THE SUB REGISTRAR'S OFFICE, THIRUVANANTHAPURAM. EXHIBIT P3 TRUE COPY OF THE WRITTEN STATEMENT DATED 27.03.2012.
EXHIBIT P4 TRUE COPY OF THE AFFIDAVIT AND PETITION DATED 23.11.2020 IN I.A.NO. 3/2020 IN O.S. NO. 2080/2011 EXHIBIT P5 TRUE COPY OF THE DEPOSITION OF THE 4TH RESPONDENT DATED 12.12.2020. EXHIBIT P6 TRUE COPY OF WILL DEED NO. 17/2005 DATED 09.02.2005 OF THE SUB REGISTRAR OFFICE, THIRUVANANTHAPURAM. EXHIBIT P7 TRUE COPY OF THE AFFIDAVIT AND PETITION DATED 14.12.2020 IN I.A.NO. 6/2020 IN O.S. NO. 2080/2011 EXHIBIT P8 TRUE COPY OF THE OBJECTION DATED 16.12.2020.
EXHIBIT P9 TRUE COPY OF THE ORDER DATED 17.12.2020 PASSED BY THE PRINCIPAL MUNSIFF COURT, THIRUVANANTHAPURAM IN I.A. NO. 6/2020 IN O.S. NO. 2080/2011
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