Kerala High Court
Mattara Alavi vs Pathummu on 1 November, 2024
O.P.(C).No.2435 of 2024 1
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
FRIDAY, THE 1ST DAY OF NOVEMBER 2024 / 10TH KARTHIKA, 1946
OP(C) NO. 2435 OF 2024
AGAINST THE ORDER/JUDGMENT DATED 19.10.2024 IN OS
NO.80 OF 2016 OF ASSISTANT SESSIONS COURT/SUB
COURT/COMMERCIAL COURT, TIRUR
PETITIONER/PLAINTIFF:
MATTARA ALAVI
AGED 60 YEARS
S/O MARAKKAR MATTARA HOUSE, A.R.NAGAR AMSOM
DESOM, KUTTOOR NORTH P.O, TIRURANGADI TALUK,
MALAPPURAM DISTRICT, PIN - 676305
BY ADVS.
JAMSHEED HAFIZ
T.S.SREEKUTTY
RESPONDENTS:
1 PATHUMMU
AGED 65 YEARS
W/O PERINGODAN MOIDEENKUTTY HAJI, ARALA PARAMBA
HOUSE, A.R NAGAR AMSOM DESOM, KUTTOOR NORTH P.O,
TIRURANGADI TALUK, MALAPPURAM DISTRICT., PIN -
676305
2 AHAMEDKUTTY
AGED 74 YEARS
S/O MOHAMED, VALAPPIL NALUPURAKKAL HOUSE, A.R
NAGAR AMSOM DESOM, KUTTOOR NORTH P.O, TIRURANGADI
TALUK, MALAPPURAM DISTRICT, PIN - 676305
3 SAIDALAVI
AGED 63 YEARS
S/O MOHAMEDKUTTY HAJI, PALAMADATHUIL KANNATTIL
HOUSE, A.R NAGAR AMSOM DESOM, KUTTOOR NORTH P.O,
TIRURANGADI TALUK, MALAPPURAM DISTRICT., PIN -
O.P.(C).No.2435 of 2024 2
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676305
4 ABDUSSAMAD HAJI,
AGED 70 YEARS
S/O MOHAMEDKUTTY HAJI, PALAMADATHIL KANNTTIL
HOUSE, A.R NAGAR AMSOM DESOM, KUTTOOR NORTH P.O,
TIRURANGADI TALUK, MALAPPURAM DISTRICT., PIN -
676305
5 PADINJAREPEEDIYEKKAL PATHUMMU
AGED 49 YEARS
W/O ALAVI MATTARA, MATTARA HOUSE, A.R NAGAR AMSOM
DESOM, KUTTOOR NORTH P.O, TIRURANGADI TALUK,
MALAPPURAM DISTRICT, PIN - 676305
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
01.11.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
O.P.(C).No.2435 of 2024 3
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VIJU ABRAHAM, J.
--------------------
O.P.(C).No.2435 of 2024
--------------------------------
Dated this the 1st day of November, 2024
JUDGMENT
The petitioner has approached this Court
challenging Ext.P6 order in IA No.13 of 2024 in OS
No.80 of 2016 dated 19.10.2024 whereby the request
of the petitioner seeking production of certain
documents from the office of the Consulate General
of India, Jeddah has been rejected.
2. Petitioner is the plaintiff and the
respondents are defendants in OS No.80 of 2016
before the Sub Court, Tirur. The suit is filed for
declaration that document No.2838/2011 and
subsequent document No.349/2014 and 1817/2015 are
void and it does not convey any valid title to
defendants 1 to 4 and to cancel the document No.
2838/2011 of SRO, Tirurangadi and for recovery of
possession. It is the contention of the petitioner
is that the defendants after starting the trial
produced the original power of attorney on the
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strength of which the document in dispute was
executed and the petitioner objected and disputed
the document as fabricated and falsely created and
filed IA No.13 of 2024 calling for document
pertaining to the above power of attorney under
Rule 120 of Civil Rules of Practice, but the trial
court by Ext.P6 order dismissed the said
application. It is aggrieved by the same, the
present original petition is filed.
3. The contention of the learned counsel for the
petitioner is that the power of attorney was
produced at the time of trial and therefore, no
delay could be attributable on the petitioner for
having filed I.A.No.13 of 2024 belatedly. A
perusal of Ext.P6 order would reveal that the
present petition has been filed after the closure
of the entire evidence. Admittedly, the suit is of
the year 2016. A perusal of Ext.P1 plaint in OS
No.80 of 2016 would reveal that the documents which
is sought to be declared as null and void were
executed on the strength of a power of attorney
executed by the plaintiff before the Consulate
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General of India, Jeddah. The specific averment in
the plaint is also to the effect that the plaintiff
has not gone to the Consulate at all and has not
given any power of attorney and the signature
available in the power of attorney is also doubtful
and that the power of attorney has been
fraudulently created. The trial court while passing
Ext.P6 order has taken note of the fact that even
in Ext.P1 plaint the specific averment of the
petitioner is that the power of attorney alleged to
have been executed is a fraudulent and fabricated
one. Even then the petitioner has not chosen to
take any steps to disprove the said power of
attorney by adducing any evidence. Therefore, the
contention of the petitioner that the petition
could be filed only now cannot be accepted. The
trial court has rightly found that the petitioner
had got sufficient time to adduce evidence so as to
support his contentions specified in the plaint.
The court has also take note of the fact that no
objection was raised at the time of marking of the
document. The trial court has also take note that
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no complaint has been filed alleging creation of a
false document till date and it is to be noted that
in the petition seeking production of documents
nothing has been stated as to whether any
application has been made at any point of time. The
court has entered a finding that the application
being filed after the closure of the entire
evidence is only to prolong the matter.
4. Taking into consideration the fact that even
though the specific contention raised in the plaint
itself is that the document was executed using a
forged and fraudulent power of attorney, the
petitioner has not taken any steps to prove the
said contention though the suit was filed as early
as in 2016. The present petition has been filed
belatedly after the evidence is over. I find no
reason to interfere with Ext.P6 order.
Therefore, the original petition is
dismissed.
Sd/-
VIJU ABRAHAM,JUDGE
pm
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APPENDIX OF OP(C) 2435/2024
PETITIONER'S EXHIBITS
Exhibit P1 TRUE COPY OF THE PLAINT IN OS. 80/2016
BEFORE THE COURT OF THE SUB COURT, TIRUR
DATED 25.10.2016
Exhibit P2 TRUE COPY OF THE WRITTEN STATEMENT FILED
BY THE 1ST RESPONDENT/1ST DEFENDANT IN
OS. 80/2016 BEFORE THE COURT OF THE SUB
COURT, TIRUR DATED 30.01.2017
Exhibit P3 TRUE COPY OF THE WRITTEN STATEMENT FILED
BY THE 4TH RESPONDENT/4TH DEFENDANT IN
OS. 80/2016 BEFORE THE COURT OF THE SUB
COURT, TIRUR DATED 30.01.2017
Exhibit P4 TRUE COPY OF THE IA. 13/2024 IN O.S.
80/2016 BEFORE THE SUB COURT, TIRUR
DATED 08.10.2024
Exhibit P5 TRUE COPY OF THE COUNTER IN IA. 13/2024
IN O.S. 80/2016 BEFORE THE SUB COURT,
TIRUR DATED 14.10.2024
Exhibit P6 TRUE COPY OF THE ORDER IN IA. 13/2024 IN
O.S. 80/2016 PASSED BY THE COURT OF THE
SUB COURT, TIRUR DATED 19.10.2024
