Yusuf Kutty vs Krishnakumar
2022 Latest Caselaw 2113 Ker

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
          THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
 THURSDAY, THE 24TH DAY OF FEBRUARY 2022 / 5TH PHALGUNA,
                                  1943
                     OP(C) NO. 381 OF 2022
AGAINST THE ORDER IN IA 4/2022 IN OS 6/2014 OF SUB COURT,
                         KARUNAGAPPALLY
PETITIONER/PLAINTIFF:

           YUSUF KUTTY
           AGED 59 YEARS
           S/O IBRHIMKUTTY, KUTTIYIL KIZHAKKATHIL,
           KRISHNAPURAM VILLAGE, KARTHIKAPPALY TALUK,
           BY ADV A.AHZAR


RESPONDENTS/DEFENDANTS :

    1      KRISHNAKUMAR
           AGED 64 YEARS
           S/O PARAMUPILLAI, ASHIRVADU VEEDU, NO A
           35/1476, JANATHA ROAD, PALARIVATTOM SOUTH,
           ERNAKULAM-682 025, FROM DWARAKA, MAVELIKKARA
           MURI, MEVELIKKARA TALUK-690 101
    2      MYTHEENKUNJU HUSSAIN,
           AGED 48 YEARS
           K.P.HOUSE, PALLISSERIKKAL MURI, SASTHAMCOTTA
           VILLAGE, KUNNATHOOR TALUK-690 521.
    3      ASHIQUE,
           AGED 24 YEARS
           S/O ABDUL SALAM, ISHA BANGLOW, KRISHNAPURAM
           MURI, KARTHIKAPPALLY VILLAGE-690 533.

        THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
24.02.2022,    THE   COURT   ON    THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
 O.P.(C)No.381 of 2022
                                   ..2..




                         A.BADHARUDEEN, J.

        ------------------------------------------------------------
                        O.P.(C)No.381 of 2022
         ------------------------------------------------------------
          Dated this the 24th day of February, 2022

                            JUDGMENT

In this original petition filed under Article 227 of

the Constitution of India, the plaintiff in O.S.No.06 of 2014

impugns the order in I.A.No.04 of 2022 dated 15.02.2022.

As per the said order, the learned Sub Judge dismissed the

application filed by the plaintiff to send written statement

and vakalath filed by the defendant for comparison of the

signatures therein by an expert. The learned Sub Judge

dismissed the application as observed in paragraph 6 of

the order impugned.

2. Paragraph 6 of the order is extracted

hereunder;

O.P.(C)No.381 of 2022 ..3..

"6. xxx The vakalath and the written statement was filed by the 1 st defendant in this case in the year 2014 and thereafter the original document along with some other documents were sent to the FSL for expert opinion. Though sufficient opportunities were available to the plaintiff from 2014 onwards plaintiff has willfully not availed the earlier opportunities for sending the written statement and vakalath for comparison before the FSL. Moreover from 21/07/20 onwards this case has been specifically posted for pre-trial steps several times, but this petition for sending the written statement and vakalath for comparison before the FSL was not filed by the plaintiff till the last preceding day on which the case is listed for trial today. Earlier according to the plaintiff there is difference in the signatures in the written statement and vakalath of the defendant with that of his signatures in the agreement for sale and hence earlier the said documents were not sought to be sent for expert opinion before the FSL. Evidence not yet stated in this case and plaintiff can prove his case through other evidence and the agreement for sale can also be proved in accordance with law. Hence I find that this petition which is filed at this stage is filed only with the intention to delay the trial of this suit indefinitely in this case. Moreover the suit was filed in the year 2014 and O.P.(C)No.381 of 2022 ..4..

now the case is included in the list for trial today being a five plus year old case, after disposing all the petitions filed one after another by the plaintiff in this case. Hence, I find that this petition is filed without any bonafides and only with the intention to delay the trial of this very old case a contended by the learned counsel for the respondents in this case. No sufficient reason is also offered by the petitioner for not filing this petition at an earlier date or for not seeking such a prayer when earlier the documents were sent for expert opinion before the FSL at Thiruvananthapuram. Hence, I find that this petition is only to be dismissed in the interest of justice."

3. Thus, it appears that, in an earlier occasion,

the plaintiff herein forwarded some documents for getting

expert opinion and during that time, the plaintiff not asked

for comparison and expert's opinion now canvassed.

Going by the reasons stated by the learned Sub Judge to

dismiss the application, I do endorse the same. Therefore,

the dismissal of a belated application in such

circumstances, in a suit of the year 2014 cannot be O.P.(C)No.381 of 2022 ..5..

faulted, since the same does not suffer from any

arbitrariness, perversity or patent illegality. Further the

intend behind the present application smells dilatory

tactics to avoid trial of a suit of the year 2014.

Therefore, this original petition fails and

accordingly dismissed.

Sd/-

A.BADHARUDEEN, JUDGE rkj O.P.(C)No.381 of 2022 ..6..

APPENDIX OF OP(C) 381/2022

PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE PLAINT IN OS NO 6/2014 ON THE FILES OF THE SUB COURT, KARUNAGAPPAALLY Exhibit P2 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE 1ST RESPONDENT Exhibit P3 TRUE COPY OF THE ORDER DATED 28.11.2014 IN IA NO 1290/2014 IN OS NO6/2014 ON THE FILES OF THE SUB COURT, KARUNAGAPPALLY Exhibit P4 TRUE COPY OF THE JUDGMENT DATED 30.11.2018 IN OP NO 238/2015 ON THE FILE OF THIS HON'BLE COURT Exhibit P5 TRUE COPY OF THE ORDER DATED 30.7.2021 IN IA NO 2/2020 IN O.S NO 6/2014 ON THE FILE OF THE SUB COURT, KARUNAGAPPALLY Exhibit P6 TRUE COPY OF THE ORDER DATED 26.11.2021 IN IA NO 3/2021 IN OS NO 6/2014 ON THE FILE OF THE SUB COURT, KARUNAGAPPALLY Exhibit P7 TRUE COPY OF THE IA NO 4/2022 IN OS NO 6/2014 ON THE FILE OF THE SUB COURT, KARUNAGAPPALLY Exhibit P8 TRUE COPY OF THE IA NO 5/2022 IN OS NO 6/2014 ON THE FILE OF THE SUB COURT, KARUNAGAPPALLY Exhibit P9 TRUE COPY OF THE ORDER DATED 15.2.2022 IN IA NO 4/2022 IN OS NO 6/2014 ON THE FILE OF THE SUB COURT, KARUNAGAPPALLY