Kerala High Court
John M.P vs Babu.M.P on 9 August, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
WEDNESDAY, THE 9TH DAY OF AUGUST 2023 / 18TH SRAVANA, 1945
OP(C) NO. 1646 OF 2023
AGAINST THE ORDER DATED 29.07.2023 IN IA NO.9/2023 IN OS NO.15/2020 OF
PRINCIPAL MUNSIFF COURT, IRINJALAKUDA
PETITIONER/1ST RESPONDENT/1ST DEFENDANT:
1 JOHN M.P
AGED 58 YEARS
SON OF LATE M.R.PAULOSE,
MANIYAKKU HOUSE, PUTHUKKAD, PUTHUKKAD (P.O.),
TRISSUR DISTRICT, PIN - 680301
BY ADVS.
ANIL PRASAD
C.N.SREEKUMAR
MANJU PAUL
SABU P.JOSEPH
TONY GEORGE THOMAS
BEYON T. VARGHESE
K.S.MUHAMMED SHEFIN
ARYA K.K.
RESPONDENTS/PETITIONERS AND RESPONDENTS 2 TO 3/PLAINTIFFS AND DEFENDANTS
2 TO 4:
1 BABU.M.P
AGED 50 YEARS
SON OF LATE M.R.PAULOSE,
MANIYAKKU HOUSE, PUTHUKKAD, PUTHUKKAD (P.O.),
TRISSUR DISTRICT, PIN - 680301
2 JIJO.M.P
AGED 48 YEARS
SON OF LATE M.R.PAULOSE,
MANIYAKKU HOUSE, PUTHUKKAD, PUTHUKKAD (P.O.),
TRISSUR DISTRICT, PIN - 680301
3 ROY.M.P
AGED 56 YEARS
SON OF LATE M.R.PAULOSE,
MANIYAKKU HOUSE, PUTHUKKAD, PUTHUKKAD (P.O.),
TRISSUR DISTRICT, PIN - 680301
4 BIJU.M.P
AGED 54 YEARS
SON OF LATE M.R.PAULOSE,
MANIYAKKU HOUSE, PUTHUKKAD, PUTHUKKAD (P.O.),
TRISSUR DISTRICT, PIN - 680301
OPC No.1646 of 2023
2
5 RAJU.M.P
AGED 52 YEARS
SON OF LATE M.R.PAULOSE,
MANIYAKKU HOUSE, PUTHUKKAD, PUTHUKKAD (P.O.),
TRISSUR DISTRICT, PIN - 680301
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 09.08.2023, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OPC No.1646 of 2023
3
C.S.DIAS, J.
-------------------------
O.P.(C.) No.1646 of 2023
-------------------------
Dated this the 09th day of August, 2023
JUDGMENT
The original petition is filed, challenging
Ext.P5 order passed by the Principal Munsiff,
Irinjalakuda in I.A. No.9 of 2023 in O.S. No.15 of
2020.
2. The relevant antecedent facts for the
determination of the original petition are:
2.1 The petitioner is the defendant in the
above suit which is filed by the respondents 1 and
2 seeking a decree of partition. The respondents
3 to 5 are the defendants 2 to 4 in the suit.
2.2 The suit is resisted by the petitioner
through Ext.P2 written statement.
2.3 The suit was listed for trial on
OPC No.1646 of 2023
13.03.2023. As the petitioner set up a defense
that there is a validly executed will in his favour,
he was directed to commence the trial. The
petitioner examined himself as DW1 and Exts.B1
to B8 were marked in evidence and Exts.A1 to A3
were marked in his cross-examination.
2.4 In addition to the petitioner, one of the
attesting witnesses to the will was examined as
DW2 and the scribe was examined as DW3.
2.5 Subsequently, the case was posted for the
evidence of respondents 1 and 2. Then, the 2nd
respondent - 2nd plaintiff was examined as PW1
and Exts.A4 to A7 were marked on his side.
2.6 During the cross-examination of PW1, the
petitioner's Counsel confronted the said witness
with Ext.B9 to B14 series of documents. The
evidence was closed.
2.7 Subsequently, the respondents 1 and 2
filed I.A.No.9 of 2023 (Ext.P3), to reopen the
OPC No.1646 of 2023
evidence for the purpose of examining the 2 nd
attesting witness to the will. Although the
application was resisted by the petitioner through
Ext.P4 counter affidavit, the court below by the
impugned Ext.P5 order, has allowed Ext.P3
application. Ext.P5 is patently erroneous and
wrong. Hence, the original petition.
3. Heard, Sri. Anil Prasad, learned Counsel
appearing for the petitioner on admission.
4. The point is whether there is any illegality
in Ext.P5 order.
5. Ext.P3 application has been filed by the
respondents 1 and 2 for the purpose of
summoning the 2nd attesting witness to the will.
Although the application was resisted by the
petitioner through Ext.P4 counter affidavit, the
court below, after appreciating the rival pleadings
and invoking its jurisdiction under Order 18 Rule
17 of the Code of Civil Procedure (in short 'Code')
OPC No.1646 of 2023
felt it fit to reopen the evidence for the purpose of
examining the attesting witness to the will.
6. Order 18 Rule 17 of the Code confers wide
discretionary powers on the courts to reopen
evidence for the purpose of proper adjudication of
the dispute. In exercise of this discretionary
power that the court below deemed it proper to
allow Ext.P3 application and reopen the evidence.
7. On an analysis of Ext.P3 application Ext.P4
counter affidavit and reasons mentioned by the
court below in Ext.P5 order, I do not find any
error and no prejudice being caused to the
petitioner because ultimately it is the 2nd
attesting witness to the will being summoned for
the purpose of giving evidence.
8. It is trite that the powers of this Court
under Article 227 of the Constitution of India is to
be sparingly exercised and in cases of exceptional
rarity. This Court is not supposed to inter-meddle
OPC No.1646 of 2023
with all orders passed by the courts of the district
judicature.
9. I do not find any error in Ext.P5 order
warranting exercise of the supervisory powers
under Article 227 of the Constitution of India.
The original petition is meritless and is hence,
dismissed.
Sd/-
C. S. DIAS
JUDGE
SKP/09-08
OPC No.1646 of 2023
APPENDIX OF OP(C) 1646/2023
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE PLAINT IN O.S. NO. 15 OF 2020
OF THE MUNSIFF COURT, IRINGALAKUDA
EXHIBIT P2 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE
1ST DEFENDANT IN O.S. NO. 15 OF 2020 OF THE
MUNSIFF COURT, IRINGALAKUDA
EXHIBIT P3 TRUE COPY OF THE PETITION I.A.NO.9 OF 2023 O.S.
NO. 15 OF 2020 TO REOPEN THE EVIDENCE FILED BY
THE RESPONDENT NO 1 AND 2/PLAINTIFF BEFORE THE
MUNSIFF COURT, IRINGALAKUDA
EXHIBIT P4 TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE
PETITIONER/1ST DEFENDANT IN I.A.NO.9 OF 2023 IN
O.S. NO. 15 OF 2020 BEFORE THE MUNSIFF COURT,
IRINGALAKUDA
EXHIBIT P5 TRUE COPY OF THE ORDER DATED 29-07-2023 IN I.A.
NO.9 OF 2023 IN O.S. NO. 15 OF 2020 OF THE
MUNSIFF COURT, IRINGALAKUDA
RESPONDENTS' EXHIBITS:NIL
TRUE COPY
P.A. TO JUDGE
