[Cites 1, Cited by 0]
Kerala High Court
Afroz Banu vs Mohammad Nizam on 15 January, 2026
Author: T.R.Ravi
Bench: T.R.Ravi
OP(C) NO. 2324 OF 2025
1
2026:KER:3261
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
THURSDAY, THE 15TH DAY OF JANUARY 2026 / 25TH POUSHA, 1947
OP(C) NO. 2324 OF 2025
AGAINST THE ORDER DATED 11.07.2025 IN IA.NO.3 OF 2025 IN OS.NO.343
OF 2018 ON THE FILE OF THE PRINCIPAL MUNSIFF COURT, KASARAGOD AND
OS.NO.326 OF 1996 OF PRINCIPAL MUNSIFF COURT, KASARAGOD
PETITIONER/DEFENDANTS 1 AND 4:
1 AFROZ BANU
AGED 74 YEARS, W/O. SAYYED YUSUF
RESIDING AT SAYYED MANSION, KURCHIPALLA,
UPPALA VILLAGE AND POST,
RAILWAY STATION ROAD, MANJESHWAR TALUK,
KASARAGOD, REPRESENTED BY HER POWER OF ATTORNEY HOLDER,
SRI. ENAYATHULLA,
S/O. SAYYED YUSUF, PIN - 671 322
2 ENAYATHULLA
AGED 52 YEARS
S/O. SAYYED YUSUF,
RESIDING AT SAYYED MANSION, KURCHIPALLA,
UPPALA VILLAGE AND POST, RAILWAY STATION ROAD,
MANJESHWAR TALUK, KASARAGOD, PIN - 671 322
BY ADVS.
SRI.P.B.SUBRAMANYAN
SRI.SABU GEORGE
SRI.MANU VYASAN PETER
SMT.MEERA P.
OP(C) NO. 2324 OF 2025
2
2026:KER:3261
RESPONDENTS/RESPONDENTS 1, 3 TO 5 AND PETITIONERS 2, 3, 5 AND 6
PLAINTIFF AND PLAINTIFF AND DEFENDANTS 2, 3, 5, 6 AND 8 TO 10:
1 MOHAMMAD NIZAM
S/O. LATE ABDUL MAJEED, RESIDING AT MANIMUNDA,
UPPALA VILLAGE AND POST, MANJESHWARA TALUK,
KASARAGOD, PIN - 671 322
2 MOHAMMAD RIYAS
S/O. ABDUL MAJEED,
RESIDING AT FLAT NO.4, GROUND FLOOR,
S.S. RESIDENCY, BIRAL COMPOUND,
ULLAL, D.K. DISTRICT, PIN - 575 020
3 NASENA BANU
D/O. ABDUL MAJEED, RESIDING AT FLAT NO.4,
GROUND FLOOR, S.S. RESIDENCY, BIRAL COMPOUND,
ULLAL, D.K. DISTRICT, PIN - 575 020
4 PURUSHOTHAMA
S/O. SHEKARA, RESIDING AT PATHAWADI ROAD,
MULINJA VILLAGE, POST UPPALA,
MANJESHWARA TALUK, KASARAGOD, PIN - 671 322
5 ZAKIYA BANU
D/O. SAYYED YUSUF,
RESIDING AT SAYYED MANSION, KURCHIPALLA,
UPPALA VILLAGE AND POST, RAILWAY STATION ROAD,
MANJESHWAR TALUK, KASARAGOD, PIN - 671 322
6 ASEENA BANU
D/O. SAYYED YUSUF, RESIDING AT SAYYED MANSION,
KURCHIPALLA, UPPALA VILLAGE AND POST,
RAILWAY STATION ROAD, MANJESHWAR TALUK,
KASARAGOD, PIN - 671 322
7 ZAFARULLA
S/O. SAYYED YUSUF, RESIDING AT SAYYED MANSION,
KURCHIPALLA, UPPALA VILLAGE AND POST,
RAILWAY STATION ROAD, MANJESHWAR TALUK,
KASARAGOD, PIN - 671 322
OP(C) NO. 2324 OF 2025
3
2026:KER:3261
8 AZIMUKLLA
S/O. SAYYED YUSUF,
RESIDING AT SAYYED MANSION,
KURCHIPALLA, UPPALA VILLAGE AND POST,
RAILWAY STATION ROAD, MANJESHWAR TALUK,
KASARAGOD, PIN - 671 322
BY ADVS.
SRI.V.R.KESAVA KAIMAL
SRI.PUSHPARAJAN KODOTH
SHRI.K.JAYESH MOHANKUMAR
SMT.VANDANA MENON
SRI.VIMAL VIJAY
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 15.01.2026, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(C) NO. 2324 OF 2025
4
2026:KER:3261
T.R.RAVI, J.
------------------------------------
OP(C) No.2324 of 2025
-------------------------------------
Dated this the 15th day of January, 2026
JUDGMENT
The original petition has been filed challenging Ext.P6
order in IA No.3 of 2025 in OS No.343 of 2018, whereby a
request made by the petitioners to call for the entire file in
EP.No.54 of 2002 in OS No.326 of 1998 on the file of the
Munsiff Court was rejected stating that there is no averment in
the affidavit regarding the non compliance of Rule 119 of Civil
Rules of Practice. The short facts of the case are as follows;
2. The petitioners were plaintiffs in OS.No.326 of
1998, which was a suit for rendering the accounts of a
partnership firm and for partition. The suit was decreed ex-
parte. A preliminary decree was passed on 21.12.1998. Final
decree was passed on 30.07.2005. Thereafter, delivery was
also effected. A petition had been filed by the 1 st respondent
for setting aside the ex parte decree, which was dismissed.
OP(C) NO. 2324 OF 2025
2026:KER:3261
The order of dismissal was reversed in appeal. The appellate
order was challenged by the petitioners before this Court in
CRP.No.141 of 2007, which culminated in Ext.P7 judgment. In
Ext.P7, this Court found that the records would show that the
respondents were put on notice and their conduct is
contumacious. The Court set aside the order in appeal and
upheld the order passed by the trial court dismissing the
petition to set aside the ex parte order. The judgment of this
Court was challenged before the Hon'ble Supreme Court,
which was also dismissed. The respondents thereafter filed a
Regular First Appeal against the judgment in OS.326 of 1998,
which was dismissed by the First Appellate Court. The
judgment of the First Appellate Court was confirmed by this
Court in RSA No.209 of 2013. It is well thereafter that the
present suit OS.No.343 of 2018 has been filed by the 1 st
respondent seeking to set aside the decree in OS.326 of 1998
on the ground of fraud. The petitioners had entered
appearance and filed their written statement and the trial also
OP(C) NO. 2324 OF 2025
2026:KER:3261
begun and the plaintiffs' evidence was completed. At that
stage, the petitioners preferred Ext.P4 application seeking to
summon the documents. It has been clearly stated in the
affidavit in support of the petition that the properties were
partitioned and after partition, delivery had also been effected
and the properties allotted to the petitioners were delivered to
them by orders in EP.No.54 of 2002. It is further stated that in
the proof affidavit, the plaintiffs had contended that the
delivery was obtained by suppressing their actual address. The
purpose of filing the petition was to disprove the above
contention. Order 13 Rule 10 CPC permits calling for such
documents. Rule 119 of the Civil Rules of Practice only says
that the application for production of records in custody of the
Court shall specify the documents that are required to be
produced and copy is to be produced while seeking production
of the original. A reading of the affidavit would show that there
is sufficient compliance with the requirements of Rule 119. In
the above circumstances, I do not find any justification for
OP(C) NO. 2324 OF 2025
2026:KER:3261
Ext.P6 order.
3. The original petition is hence allowed. Ext.P6 is set
aside. There will be a direction to the Court below to call for
the records sought for in IA.No.3 of 2025 in OS No.343 of
2018 and proceed with the trial thereafter. Since the suit is of
2018, all endeavor shall be made to dispose of the suit within
six months from the date of receipt of a copy of this judgment.
Sd/-
T.R.RAVI
JUDGE
sn
OP(C) NO. 2324 OF 2025
2026:KER:3261
APPENDIX OF OP(C) NO. 2324 OF 2025
PETITIONERS' EXHIBITS
Exhibit P 1 TRUE COPY OF THE PLAINT IN O.S.NO.343 OF 2018
ON THE FILE OF THE PRINCIPAL MUNSIFF'S COURT,
KASARAGOD, DATED 3-11-2018
Exhibit P 2 T RUE COPY OF THE WRITTEN STATEMENT FOR
DEFENDANTS 1 TO 6 IN O.S.NO.343 OF 2018 ON
THE FILE OF THE PRINCIPAL MUNSIFF'S COURT,
KASARAGOD, DATED 02-05-2019
Exhibit P3 TRUE COPY OF THE WRITTEN STATEMENT OF
DEFENDANT NO.10 IN O.S.NO.343 OF 2018 ON THE
FILE OF THE PRINCIPAL MUNSIFF'S COURT,
KASARAGOD, DATED 16-12-2024
Exhibit P 4 TRUE COPY OF I.A.NO.3/2025 IN O.S.NO.343 OF
2018 ON THE FILE OF THE PRINCIPAL MUNSIFF'S
COURT, KASARAGOD, DATED 9-07-2025
Exhibit P 5 TRUE COPY OF THE COUNTER IN I.A.NO.3/2025 IN
O.S.NO.343 OF 2018 ON THE FILE OF THE
PRINCIPAL MUNSIFF'S COURT, KASARAGOD, DATED
11-07-2025
Exhibit P 6 TRUE COPY OF THE ORDER IN I.A.NO.3/2025 IN
O.S.NO.343 OF 2018 ON THE FILE OF THE
PRINCIPAL MUNSIFF'S COURT, KASARAGOD, DATED
11-07-2025
Exhibit P 7 TRUE COPY OF THE JUDGMENT IN CRP.NO.141/2007
OF THIS HON'BLE COURT, DATED 8-1-2009
