Hamsa vs Ali
2022 Latest Caselaw 2336 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                   PRESENT
                THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
       WEDNESDAY, THE 2ND DAY OF MARCH 2022 / 11TH PHALGUNA, 1943
                          OP(C) NO. 414 OF 2022
 AGAINST THE ORDER/JUDGMENT IN IA 7/2021 IN OS 259/2019 OF I ADDITIONAL
                          SUB COURT, ERNAKULAM
PETITIONER/PETITIONER/PLAINTIFF:

           HAMSA
           AGED 50 YEARS
           S/O.KUTTY, RESIDING AT ARIYATTIL HOUSE
           EDAPALLY SOUTH VILLAGE,
           KANAYANNUR TALUK, PALARIVATTOM P.O.
           ERNAKULAM DISTRICT - 682 024
           BY ADVS.
           MANSOOR.B.H.
           SAKEENA BEEGUM


RESPONDENT/RESPONDENT/DEFENDANT:

           ALI
           S/O.MEETHUTAN,
           AGED ABOUT 56 YEARS,
           RESIDING AT MUTHAYIL HOUSE,
           VENGOLA VILLAGE, KUNNATHUNADU
           ALLAPRA P.O.
           ERNAKULAM DISTRICT - 683 553

     THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 02.03.2022, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 OP(C) NO. 414 OF 2022
                                 2


                            JUDGMENT

Dated this the 2nd March, 2022

Order dated 29.11.2021 in I.A.No.7/2021 in O.S.259/2019 on

the files of the Additional Sub Judge-I, Ernakulam is under

challenge in this Original Petition under Article 227 of the

Constitution of India at the instance of the plaintiff in the above

suit.

2. Heard the learned counsel for the petitioner on

admission.

3. The precise grievance that has been advanced before

this Court is regarding the necessity of examining the second

witness, the President of Ponnurunni Pallippady Muslim Jamath, to

prove the suit document, viz., agreement in dispute.

4. On perusal of the written statement filed by the

defendant, his contention was that the agreement is the outcome

of undue influence. Virtually, the same would go to show that the

defendant also did not dispute the existence of such an

agreement and the only contention is that the same is one got

executed due to undue influence. However, the learned counsel

for the petitioner would submit that the examination of the OP(C) NO. 414 OF 2022

President is necessary.

5. Going by the impugned order, the learned Sub Judge

found that the evidence of the witness is not necessary to decide

the matter in dispute. In the objection filed by the defendant in

Review Petition, I.A.No.1/2021 and I.A.No.07/2021 the prayer to

examine the second witness has been zealously opposed on the

ground that a mediator's evidence shall be confined to the four

walls of the mediation and hence, the same shall not be part of

the evidence before the court.

Going by the order impugned along with the nature of

contentions raised, I am of the view that in order to decide the

fact in issue, the evidence of the second witness is not necessary.

Therefore, the learned Sub Judge rightly allowed the Review

Petition along with the delay petition and thereby the earlier

order to summon the witness was re-called.

Therefore, this Original Petition stands dismissed.

Sd/-

A. BADHARUDEEN JUDGE nkr OP(C) NO. 414 OF 2022

APPENDIX OF OP(C) 414/2022

PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE PLAINT IN O.S.NO.259/2019 ON THE FILE OF THE COURT OF THE ADDITIONAL SUBORDINATE JUDGE-I, ERNAKULAM EXHIBIT P2 TRUE COPY OF THE WRITTEN STATEMENT IN OS NO.259/2019 ON THE FILE OF THE COURT OF THE ADDITIONAL SUBORDINATE JUDGE COURT-1 AT ERNAKULAM EXHIBIT P3 TRUE COPY OF WITNESS LIST IN OS NO.259/2019 PREFERRED BY THE PETITIONER EXHIBIT P4 TRUE COPY OF THE I.A.NO.7/2021 IN OS NO.259/2019.

EXHIBIT P5 COPY OF THE OBJECTION FILED BY TEH RESPONDENT IN I.A.NO.7/2021 IN O.S.NO.259/2019.

EXHIBIT P6 COPY OF THE RP NO.22/2021 IN I.A.7/2021 IN O.S.NO.259/2019 EXHIBIT P7 TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER IN R P NO.22/2021 IN I A NO.7/2021 IN OS NO.259/2019.

EXHIBIT P8 TRUE COPY OF THE ORDER DATED 26.11.2021 IN R.P.NO.22/2021 IN I.A.NO.7/2021 IN O.S.NO.259/2019 OF COURT OF ADDITIONAL SUB ORDINATE JUDGES COURT-I, ERNAKULAM. EXHIBIT P9 COPY OF THE ORDER DATED 29.11.2021 IN I.A.NO.7/2021 IN O.S.NO.259/2019 OF COURT OF ADDITIONAL SUB ORDINATE JUDGES COURT-1, ERNAKULAM.