Kerala High Court
Jaya @ Jaya Viswanathan vs C. Kunhunni on 30 March, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR
TUESDAY, THE 30TH DAY OF MARCH 2021 / 9TH CHAITHRA, 1943
OP(C).No.2752 OF 2018
AGAINST THE ORDER/JUDGMENT IN OS 66/2017 OF SUB COURT,
OTTAPPALAM
PETITIONER:
JAYA @ JAYA VISWANATHAN,
AGED 67 YEARS,
W/O VISWANATHAN, VIJAYASADANAN, AZHOOR POST,
PATHANAMTHITTA, KOZHANCHERI TALUK,
PATHANAMTHITTA DISTRICT
BY ADV. SRI.K.RAVI (PARIYARATH)
RESPONDENTS:
1 C. KUNHUNNI,
AGED 75 YEARS,
S/O PARANGODAN, CHIRAKKAL VEEDU,
VILAYUR POST, PATTAMBI TALUK,
PALAKKAD DISTRICT. PIN 679 101.
2 PRADEEP,
S/O.C.K.KUNHUNNI,CHIRAKKAL VEEDU,VILAYUR
POST,PATTAMBI TALUK,PALAKKAD DISTRICT,PIN-
679101.
3 THE DEPUTY GENERAL MANAGER,
STATE BANK OF INDIA,STRESSED ASSETS MANAGEMENT
BRANCH,RED CROSS BUILDING,32,MONTIATH
ROAD,EGMORE,CHENNAI-600008.
R1 BY ADVS. SRI.R.SREEHARI
SRI.SACHIN VYAS
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON
30.03.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
O.P.(C)No.2752/2018
-:2:-
Dated this the 30th day of March,2021
J U D G M E N T
Ext.P6 order dated 31.07.2018 passed by the
Subordinate Judge, Ottapalam, is challenged by the
aggrieved plaintiff in O.S.No.66/2017. The suit
was filed for specific performance of a contract
of sale.
2. The second defendant is the power of
attorney holder of the first defendant. The first
defendant in the suit questioned execution of
agreement for sale contending that the thump
impression appearing underneath his photograph
affixed in the document is not his. No dispute
with respect to execution of power of attorney in
favour of the second defendant exists between the
parties to the suit.
3. In the course of the suit, first
defendant filed I.A.No.343/2018 seeking to send
the agreement for sale to Forensic Science
Laboratory for comparison of his true thump
impression seen in the power of attorney with the
disputed thump impression in the agreement for
sale. Though plaintiff opposed the application,
the court below rejecting the objection, allowed
O.P.(C)No.2752/2018
the application by the impugned order.
4. I heard the learned counsel for the
petitioner as well as the respondents.
5. The contention raised by the petitioner
is that he has no case in the plaint that the
first defendant either signed or affixed his thump
impression in the agreement for sale. On the other
hand, the contention in the plaint is that the
first defendant executed agreement for sale though
his agent, the second defendant.
6. If this is the nature of contention, it
escapes one's understanding as to how the
question as to whether first defendant affixed his
thump impression in agreement for sale arises in
the suit for consideration at all. This aspect of
the matter was not taken note of by the court
below. The court below without applying its mind
simply ordered the documents before the court to
be forwarded to Forensic Science Laboratory for
comparison. The impugned order cannot be sustained
and it is liable to be set aside.
In the result, original petition succeeds and
the impugned order dated 31.07.2018 is set aside.
I.A.No.343/2018 is dismissed. This being a suit of
O.P.(C)No.2752/2018
2017, there shall be a direction to the court
below to dispose of the suit within a period of
six months from the date of production of
certified copy of this judgment.
All pending interlocutory applications will
stand closed.
Sd/-
T.V.ANILKUMAR,JUDGE
DST //True copy/
P.A.To Judge
O.P.(C)No.2752/2018
APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE PLAINT PRESENTED AS
O.S.NO.66/2007,ON THE FILE OF THE
SUBORDIDATE JUDGE,OTTAPALAM,DATED
01.11.17.
EXHIBIT P2 TRUE COPY OF THE WRITTEN STATEMENT
FILED BY THE 1ST DEFENDANT IN
O.S.NO.66/2017,ON THE FILE OF THE
SUBORDINATE JUDGE,OTTAPALAM 20.02.18.
EXHIBIT P3 TRUE COY OF THE WRITTEN STATEMENT FILED
BY THE 2ND DEFENDANT IN
O.S.NO.66/2017,ON THE FILE OF THE
SUBORDINATE JUDGE,OTTAPALAM 14.02.18.
EXHIBIT P4 TRUE COPY OF THE AFFIDAVIT FILED BY THE
1ST DEFENDANT IN SUPPORT OF
I.A.NO.343/2018,IN O.S.NO.66/2017,ON
THE FILE OF THE SUBORDINATE
JUDGE,OTTAPALAM,SEEKING TO SEND THE
DOCUMENTS FOR FSL REPORT,DATED
19.01.18.
EXHIBIT P5 TRUE COPY OF THE OBJECTION FILED BY THE
PLAINTIFF IN I.A.NO.343/2018,IN
O.S.NO.66/2017,ON THE FILE OF THE
SUBORDINATE JUDGE,OTTAPALAM,DATED
28.02.18.
EXHIBIT P6 TRUE COPY OF ORDER PASSED BY THE
SUBORDINATE JUDGE,OTTAPALAM,IN
I.A.NO.343/2018,IN O.S.NO.66/2O17 DATED
31.07.18.
RESPONDENTS' EXHIBITS:
EXHIBIT R1(A) PHOTO COPY OF MRI PELVIS REPORT OF THE
APPLICANT ISSUED BY JUBILEE MEDISCAN.
EXHIBIT R1(B) PHOTO COPY OF HISTOPATHOLOGY REPORT OF
THE APPLICANT ISSUED BY GEM HOSPITAL &
RESEARCH CENTER PVT. LTD. COIMBATORE.
EXHIBIT R1(C) PHOTO COPY OF RADIATION ONGOLOGY REPORT
OF THE APPLICANT ISSUED BY MVR CANCER
O.P.(C)No.2752/2018
CENTRE & RESEARCH INSTITUTE, KOZHIKODE.
EXHIBIT R1(D) PHOTO COPY OF HISTOPATHOLOGY REPORT OF
THE APPLICANT ISSUED BY JUBILEE MISSION
MEDUCAK COLLEGE & RESEARCH INSTITUTE.
EXHIBIT R1(E) PHOTO COPY OF HISTOPATHOLOGY
INVESTIGATION REPORT OF THE APPLICANT
ISSUED BY MVR CANCER CENTRE & RESEARCH
INSTITUTE.
EXHIBIT R1(F) PHOTO COPY OF RADIOLOGY REPORT OF THE
APPLICANT ISSUED BY MVR CANCER CENTRE &
RESEARCH INSTITUTE, KOZHIKODE.
