Cherian George vs A.C.Cherian
2023 Latest Caselaw 6298 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
                THE HONOURABLE MR. JUSTICE P.SOMARAJAN
        MONDAY, THE 12TH DAY OF JUNE 2023 / 22ND JYAISHTA, 1945
                        OP(C) NO. 2118 OF 2021
 AGAINST THE ORDER DATED 03.11.2021 IN IA 6/2021 IN OS 2/2019 OF
                         SUB COURT DEVIKULAM
PETITIONER/PETITONER/PLAINTIFF:

            CHERIAN GEORGE, AGED 46,
            S/O. GEORGE, RESIDING AT KOCHIYIL HOUSE,
            KIZHAKKENMUTHOOR MURI, KUTTAPPUZHA VILLAGE, THIRUVALLA
            TALUK,
            PATHANAMTHITTA DISTRICT.
            BY ADVS.
            V.RAJENDRAN (PERUMBAVOOR)
            N.RAJESH
            GOPAKUMAR P.


RESPONDENTS/RESPONDENTS/DEFENDANTS:

    1       A.C.CHERIAN, S/O CHERIAN,
            AGED 70, AETTUVALLIL HOUSE, VATTIYAR P.O, KAALLAR,
            IDUKKI DISTRICT-685 565.
    2       SUSAMMA, W/O. A.C.CHERIAN,
            AGED 68, AETTUVALLIL HOUSE, VATTIYAR P.O., KAALLAR,
            IDUKKI DISTRICT-685 565.

            BY ADV GOPAKUMAR R.THALIYAL


     THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 12.06.2023,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 OP(C) NO. 2118 OF 2021

                                         2


                                    JUDGMENT

An application submitted seeking permission to

adduce expert opinion under Section 45 of the

Evidence Act was dismissed under Ext.P9 order. It is

a suit for specific performance of the contract for

sale. The right to adduce evidence under Section 45

of the Evidence Act shall not be curtailed, unless

there is warranting reason especially when it is

pertaining to a document alleged to have been

executed by one person and denied by the other

person. When there is an assertion to the effect

that the document executed would require expert

opinion under Section 45 of the Evidence Act, the

court shall not deny such an opportunity even on the

ground of delay, which can be condoned in terms of

money. As such Ext.P9 order cannot be sustained,

liable to be set aside. I do so by exercising the

extra ordinary jurisdiction under Article 227 of the

Constitution. The trial court shall send the records

for expert opinion without causing any further delay OP(C) NO. 2118 OF 2021

and the plaintiff shall take steps within a time not

exceeding three weeks from the date of order of the

trial court.

The O.P.(C) will stand disposed of accordingly.

Sd/-

P.SOMARAJAN JUDGE msp OP(C) NO. 2118 OF 2021

APPENDIX OF OP(C) 2118/2021

PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF REGISTERED SALE AGREEMENT NO.233 OF DEVIKULAM SUB REGISTRY OFFICE DATED 11.2.16 EXECUTED BETWEEN THE PETITIONER AND RESPONDENTS.

Exhibit P2 TRUE COPY OF REGISTERED SALE AGREEMENT NO.1362 OF DEVIKULAM SRO DATED 9.8.16 EXECUTED BETWEEN THE PETITIONER AND RESPONDENTS.

Exhibit P3 TRUE COPY OF PLAINT IN O.S.2/19 OF SUB COURT, DEVIKULAM DATED 7.1.19.

Exhibit P4 TRUE COPY OF WRITTEN STATEMENT FILED BY RESPONDENTS 1 & 2 ON 3.4.19 IN O.S.2/19 OF SUB COURT, DEVIKULAM.

Exhibit P5 TRUE COPY OF RECEIPT ISSUED BY IST RESPONDENT TO THE PETITIONER ON 16.3.16.

Exhibit P6 TRUE COPY OF RECEIPT ISSUED BY IST RESPONDENT TO THE PETITIONER ON 9.8.16.

Exhibit P7 TRUE COPY OF THE LETTER ISSUED BY THE IST RESPONDENT TO THE PETITIONER ON 25.7.17. Exhibit P8 TRUE COPY OF I.A.7/21 IN O.S.2/19, OF SUB COURT DEVIKULAM FILED BY THE PETITIONER FOR SENDING EXHIBITS P5 TO P7 FOR EXPERT OPINION. Exhibit P9 TRUE COPY OF ORDER OF SUB COURT DEVIKULAM IN I.A.7/2021 IN O.S.NO.2/2019 DATED 3.11.2021.