Ashraf vs Sajeev Scaria
2022 Latest Caselaw 1398 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                   PRESENT
                THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
        TUESDAY, THE 1ST DAY OF FEBRUARY 2022 / 12TH MAGHA, 1943
                          OP(C) NO. 198 OF 2022
 AGAINST THE ORDER/JUDGMENT IN IA 4/2022 IN OS 29/2018 OF ADDITIONAL SUB
                             COURT,KOTTAYAM
PETITIONER/PETITIONER/DEFENDANT:

           ASHRAF
           AGED 65 YEARS
           S/O.MUHAMED KUNJU, AADILS HOUSE,
           KANNANALLOOR, KOLLAM - 691 576.
           BY ADV R.KISHORE (KALLUMTHAZHAM)


RESPONDENT/RESPONDENT/PLAINTIFF:

           SAJEEV SCARIA
           AGED 48 YEARS
           S/O.SCARIA, RESIDING @ PLAKITHOTTIL HOUSE,
           ETTUMANNOOR P.O., ETTUMANOOR VILLAGE,
           KOTTAYAM TALUK, KOTTAYAM DISTRICT, PIN - 691 576.

     THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 01.02.2022, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 OP(C) NO. 198 OF 2022
                                  2


                             JUDGMENT

Dated this the 1st day of February, 2022

This Original Petition has been filed under Article 227 of the

Constitution of India by the petitioner, who is the defendant in

O.S.No.29/2018 pending before the Additional Sub Court,

Kottayam. Another case filed by the defendant/petitioner herein as

plaintiff also is pending before the Sub Court, Kottayam on getting

it transferred from the Munsiff Court, Kollam.

2. Now, as per order dated 14.09.2021 in

Tr.P(C).No.335/2018, this Court directed the Additional Sub Court,

Kottayam to expedite trial of both the cases and dispose of the

same within a period of six months of transfer of O.S.No.222/2018

from the Munsiff's Court, Kollam to Munsiff's Court, Kottayam.

Thereafter, in obedience to the order, the Sub Court, Kottayam

proceeded with the trial. Now the plaintiff's evidence was closed

and the defendants also got examined. Meanwhile, the petitioner

herein filed I.A.No.4/2022, seeking an expert opinion regarding

the entries in Ext.A2 cheque alleged to be issued by the defendant

in favour of the plaintiff for the transaction where the petitioner is

disputing the said document.

OP(C) NO. 198 OF 2022

3. Heard the learned counsel for the petitioner on

admission.

4. It is interesting to note that originally the suit was filed

in the year 2018. Another suit was filed by the petitioner as

plaintiff before the Munsiff's Court, Kollam in respect of the same

dispute. Ultimately, as per order in the transfer petition filed

before this Court, the suit filed by the petitioner before the

Munsiff's Court, Kollam got transferred to Additional Sub Court,

Kottayam for joint trial. Now it appears that after examining the

defendant as DW1, the defendant filed this petition to send Ext.A2

cheque for the opinion of handwriting expert, for comparing the

handwriting thereon. The learned Sub Judge dismissed the

application as per order dated 17.01.2022, stating that the petition

was belated since the same was filed after almost completion of

the trial. In fact, in this case, there was a direction by this Court to

dispose of the same, within a time limit and in view of the

direction, the trial court has been proceeding with the suit. At this

juncture, the petitioner herein filed I.A.4/2022 to get an expert

opinion at a much belated stage, after completion of evidence as

stated by the learned Sub Judge in the impugned order. It is OP(C) NO. 198 OF 2022

pertinent to note that though the suit has been pending for about

4 years, the petitioner not shown any interest to get expert

opinion. When the trial was about to complete, this petition was

filed. Thus the petition lacks bonafides and delayed tactics cannot

be ruled out. As such, I do not think that such an application is

liable to be allowed and I do endorse the view expressed by the

learned Sub Judge.

In view of the matter, there is nothing in the order to re-visit

the same since the same does not suffer from any perversity or

arbitrariness. Therefore, this Original Petition fails and is dismissed

without being admitted.

Registry is directed to forward a copy of this judgment to the

court below concerned, within seven days, for information.

Sd/-

A. BADHARUDEEN JUDGE nkr OP(C) NO. 198 OF 2022

APPENDIX OF OP(C) 198/2022

PETITIONER EXHIBITS Exhibit P1 THE COPY OF PLAINT IN O.S.NO.29/2019 OF THE ADDL. SUB COURT, KOTTAYAM.

Exhibit P2 THE TRUE COPY OF THE JUDGMENT IN TR.PC.335/2018 AND CONNECTED CASES DATED 14TH SEPTEMBER, 2021.

Exhibit P3 THE TRUE COPY OF THE IA FILED BY THE PETITIONER NUMBERED AS IA 4/2022 BEFORE THE ADDITIONAL SUB COURT, KOTTAYAM.

Exhibit P4 THE TRUE COPY OF THE EXTRACT OBTAINED FROM THE DISTRICT COURT WEBSITE REGARDING PROCEEDINGS IN OS 29/2018.

Exhibit P4(A) THE TRUE COPY OF THE EXTRACT OBTAINED FROM THE DISTRICT COURT WEBSITE REGARDING THE PROCEEDINGS IN O.S. 106/2021 Exhibit P5 THE TRUE COPY OF THE ORDER IN IA 4/2022 DATED 17TH JANUARY OF THE ADDITIONAL SUB COURT KOTTAYAM.