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High Court of KeralaOP(C)/488/2015dismissed

Josepheena v. Thomas

2015-02-24Honourable Mr.Justice P.Bhavadasan4 pages

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT:

THE HONOURABLE MR.JUSTICE P.BHAVADASAN TUESDAY, THE 24TH DAY OF FEBRUARY 2015/5TH PHALGUNA, 1936 OP(C).No. 488 of 2015 (O) ------------------------------ (OS 1061/2013 of PRINCIPAL MUNSIFF COURT, IRINJALAKUDA) PETITIONERS:

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1. JOSEPHEENA AGED 60 YEARS DAUGHTER OF MOOTHEDATHU JOSEPH & WIFE OF VAROKKY PAUL, MURIYAD VILLAGE & DESOM MUKUNDAPURAM TALUK, THRISSUR DISTRICT.

2. MARY, AGED 52 YEARS DAUGHTER OF MOOTHEDATHU JOSEPH & WIFE OF ARAKKAL THOZHUTHUMPARAMBAIL EDWARD KOLOTHUMPADY DESOM, VELUKKARA VILLAGE MUKUNDAPURAM TALUK, THRISSUR DISTRICT.

3. MERCY, AGED 50 YEARS DAUGHTER OF MOOTHEDATHU JOSEPH & WIFE OF POTTAHTUPARAMBIL SUNNY CHRIST COLLEGE JUNCTION, IRINJALKUDA VILLAGE MUKUNDAPURAM TALUK, THRISSUR DISTRICT.

BY ADVS.SMT.K.MEERA SRI.BOBY MATHEW RESPONDENTS:

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1. THOMAS, AGED 67 YEARS SON OF JOSEPH, MOOTHEDATH HOUSE MURIYAD VILLAGE & DESOM, MUKUNDAPURAM TALUK THRISSUR DISTRICT - 680027.

2. XAVIER,, AGED 55 YEARS SON OF JOSEPH, MOOTHEDATHU HOUSE, MURIYAD DESOM VILLAGE MUKUNDAPURAM TALUK, THRISSUR DISTRICT 680027. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 24-02-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

OP(C).No. 488 of 2015 (O) ------------------------------ APPENDIX PETITIONERS' EXHIBITS :

--------------------------- EXHIBITP1:TRUE COPY OF THE PLAINT DATED 22.6.2012 IN OS 1566 OF 2012 BEFORE THE MUNSIFF COURT, IRINJALAKUDA.

EXHIBIT P2: TRUE COPY OF THE PLAINT DATED 4.4.2013 IN OS.1061 OF 2013 ON THE FILE OF THE PRINCIPAL MUNSIFF COURT, IRINJALAKKUDA.

EXHIBIT P3: TRUE COPY OF THE WRITTEN STATEMENT OF THE 2ND DEFENDANT FILED ON 6.2.2014 IN O.S. 1061 OF 2013 ON THE FILE OF THE PRINCIPAL MUNSIFF COURT, IRINJALAKKUDA. EXHIBIT P4: TRUE COPY OF THE REJOINDER DATED 24.1.2015 TO THE WRITTEN STATEMENTS OF DEFENDANTS 1 AND 2 FILED BY THE PLINTIFFS IN OS 1061 OF 2013 ON THE FILE OF THE PRINCIPAL MUNSIFF COURT, IRINJALAKKUDA.

EXHIBIT P5:TRUE COPY OF THE IA NO.1063 OF 2015 IN OS 1061 OF 2013 ON THE FILE OF THE PRINCIPAL MUNSIFF COURT, IRINJALAKKUDA.

EXHIBIT P6: TRUE COPY OF THE OBJECTION FILED BY THE 2ND RESPONDENT TO EXT. P5 IA.

EXHIBITP7: TRUE COPY OF IA NO 1082 OF 2015 IN OS 1061 OF 2013 ON THE FILE OF THE PRINCIPAL MUNSIFF COURT, IRINJALAKKUDA. EXHIBIT P8: TRUE COPY OF THE OBJECTION FILED BY THE 2ND RESPONDENT TO EXT.P7 I.A.

EXHIBIT P9: TRUE COPY OF THE ORDER DATED 19.2.2015 PASSED IN EXT.P5 I.A.

EXHIBIT P10: TRUE COPY OF THE ORDER DATED 19.2.2015 PASSED IN EXT. P7 I.A.

RESPONDENTS' EXHIBITS: NIL.

----------------------------- // True Copy // P.A. To Judge.

smp

P.BHAVADASAN, J.

------------------------------------------------- Original Petition (Civil) No.488 OF 2015 ------------------------------------------------- Dated this the 24th day of February, 2015.

J U D G M E N T

The court below dismissed the application filed by the petitioners for having the Will produced in the suit sent for expert's opinion on the ground that it was highly belated and it was a ploy adopted by the petitioners to have the suit removed from the list.

2. The suit was one for partition. It relates to 50 cents of property in Survey No.383/2 of Muriyad village. At the time of hearing the interlocutory application itself 2nd defendant had mentioned about the Will. He filed the written statement on 07.02.2014 in which he gave details of the Will. Issues were cast on 13.08.2014. The court below has noticed that there were several opportunities for both sides to take pre-trial steps but none did anything. After the matter was sent for mediation and since the mediation did not materialise, the matter came back to court on 19.01.2015 and with notice to both parties suit was

O.P.(C) No.488/2015 listed to 09.02.2015 for trial. It was then that on 07.02.2015 the petitioners came forward with the present applications for sending the Will for expert's opinion and also the suit removed from the list.

3. The court below was perfectly justified in holding that the petitioners had ample opportunities to have the Will sent for expert's opinion. They waited till the suit is included in the list to move applications. As rightly noticed by the court below, this is nothing but a ploy adopted by the petitioners to remove the case from the list of trial. That cannot be encouraged. This original petition is without merits and it is accordingly dismissed.

Sd/- P.BHAVADASAN JUDGE smp