JIBIN JOSEPH v. ANCY BABY and others

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C. Jayachandran
Judgment Date: 2023-12-14
Court Decision / Holding: This Original Petition is disposed of. Exts.P11 and P12 are set aside; Exts.P7 and P9 are allowed, subject to payment of Rs. 50,000 to the first respondent within one month. The plaintiff’s evidence will be reopened, and the plaintiff may adduce evidence on the basis of the newly produced document. Time for payment of cost shall not be extended.
Final Disposition: Disposed of

Parties to the Case

Appellants / Petitioners

JIBIN JOSEPH

Respondents

ANCY BABY
BENNY
SANTHOSH CHERIYAN
BINOY
SUNNY
LALSON

Legal Representation & Advocates

Counsels for Petitioners

• A.C. Venugopal
• Vidya A.C

Counsels for Respondents

• Madhavanunni V T
• Satheesh V A

Case Synopsis & Summary

The petitioner is Jibin Joseph, the additional 7th defendant in OS No.174/2016 before the Munsiff Court, Taliparamba. He is aggrieved by Exts.P11 and P12, which respectively refused to admit a will produced at the evidence stage and denied an additional witness list on his behalf. The impleadment as the 7th respondent had been allowed on 14.03.2022, and he filed a written statement on 03.06.2022 seeking exclusion of 1 acre from the total 1.85 acres in the partition on the strength of a will said to be executed by Cheriyan, whose children are parties to the partition suit. After the plaintiff’s evidence, Ext.P7 (to produce the will) and Ext.P9 (for an additional witness list) were moved; Ext.P7 was dismissed by Ext.P11 and Ext.P9 by Ext.P12. The High Court notes that Ext.P7 was a curt application with an evasive explanation that the will had been misplaced, and that the impleadment had been allowed long ago, with written statements filed. It relied on a Supreme Court decision (Levaku Pedda Reddamma) to hold that such a document could be admitted on payment of cost. Consequently, Exts.P11 and P12 are set aside and Exts.P7 and P9 are allowed, subject to a Rs.50,000 cost to the plaintiff within one month. The suit will be reopened to accommodate the new document and witness list; no extension of time for payment of the cost is permitted. The petition is disposed of accordingly.

Provisions of Law Cited

Order 8 Rule 1A CPCOrder 8 Rule 1A(3) CPC

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that impleadment as the 7th respondent had been allowed and that the will sought to be produced should be admitted as it bears directly on the rights to a major portion of the plaint schedule property. The belated production of the document should be permitted in light of extant jurisprudence (as echoed by the Supreme Court in Levaku Pedda Reddamma) that such documents may be admitted on payment of an appropriate cost, and the trial should be allowed to proceed with the new evidence and witness list after payment of costs.

Contentions of Respondents

Respondents did not appear; there is no representation for them at the proceedings regarding Exts. P7 and P9. The record suggests that the trial court found the production of the document belated and that admitting it would alter the nature of the suit; the respondents’ position on admissibility of the will and on reopening evidence is not elaborated in the document. The court’s decision to rely on Supreme Court precedent indicates leverage of due process and cost-based admission of late evidence, but no detailed substantive argument from respondents is recorded.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Levaku Pedda Reddamma & others vs Gottumukkala Venkata Subbamma & another	Civil Appeal No.4096 of 2022 in SLP(C) No.7452/2022	Positive	Cited to support admitting belated documents on payment of appropriate costs rather than excluding them outright.

Extracted Judgment Text

Exact text extracted from official judgment records.

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN THURSDAY, THE 14[TH] DAY OF DECEMBER 2023 / 23RD ``` ## **`AGRAHAYANA, 1945`** ## **`OP(C) NO. 2489 OF 2023`** ## **`AGAINST THE ORDER/JUDGMENT OS 174/2016 OF MUNSIFF COURT,`** ## **`THALIPARAMBA`** ## **`PETITIONER/DEFENDANT NO.7:`** ``` JIBIN JOSEPH AGED 25 YEARS S/O. BENNY, NELLAMKUZHIYIL HOUSE, UDAYAGIRIAMSOM, DESOM, UDAYAGIRI P.O, TALIPARMABATALUK, KANNUR DISTRICT., PIN - 670571 BY ADVS. A.C.VENUGOPAL VIDHYA. A.C ``` ## **`RESPONDENTS/PLAINTIFF AND DEFENDANTS 1-6:`** ``` 1ANCY BABY AGED 50 YEARS W/O. BABY, THARETTU HOUSE, CHITTARIKKAL AMSOM VELLARIKUNDU TALUK, KASARGOD DISTRICT, PIN - 671326 2BENNY @ JOSEPH AGED 46 YEARS S/O.CHERIYAN, NELLAMKUZHIYIL HOUSE, THOMARAKKADU, UDAYAGIRI P. O, ALAKODE AMSOM, TALIPARAMBA TALUK, KANNUR DISTRICT, PIN - 670571 3SANTHOSH CHERIYAN AGED 43 YEARS S/O.CHERIYAN, NELLAMKUZHIYIL HOUSE, THOMARAKKADU, UDAYAGIRI P. O, ALAKODE AMSOM, TALIPARAMBA TALUK, KANNUR DISTRICT, PIN - 670571 4BINOY AGED 40 YEARS S/O.CHERIYAN, NELLAMKUZHIYIL HOUSE, THOMARAKKADU, UDAYAGIRI P. O, ALAKODE AMSOM, TALIPARAMBA TALUK, KANNUR DISTRICT, PIN - 670571 ``` ``` 2 ``` ``` OP(C) NO. 2489 OF 2023 ``` ``` 5SUNNY AGED 50 YEARS H/O. LALY, MANALEL HOUSE, THADIKKADAVU P. O, KOOVERI AMSOM, TALIPARAMBA TALUK, KANNUR DISTRICT, PIN - 670581 6LALSON AGED 23 YEARS S/O LALY, MANALEL HOUSE, THADIKKADAVU P. O, KOOVERI AMSOM, TALIPARAMBA TALUK, KANNUR DISTRICT, PIN - 670581 7LUCKY AGED 20 YEARS D/O SUNNY. MANALEL HOUSE, THADIKKADAVU P. O, KOOVERI AMSOM, TALIPARAMBA TALUK, KANNUR DISTRICT, PIN - 670581 BY ADVS. Madhavanunni V T SATHEESH V A ``` ``` THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 14.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` 3 ``` ``` OP(C) NO. 2489 OF 2023 ``` ## **`JUDGMENT`** ``` The petitioner herein is the additional 7[th] defendant in the suit O.S. No.174/2016 of the Munsiff Court, Taliparamba. The petitioner is aggrieved by Exts.P11 and P12 orders, the former of which refused to accept a ‘will’ produced at the evidence stage and the later, refusing an additional witness list on behalf of the petitioner herein. ``` ``` 2. Heard the learned counsel for the petitioner. Though notice was served on the respondents by special messenger and also through their counsel, there is no representation for the respondent. Learned counsel for the petitioner submits that the petitioner sought impleadment in the suit for partition as additional 7[th] respondent, claiming title to a major portion of the plaint schedule property on the strength of a ‘will’, said to have been executed by one Cheriyan, whose children are the parties to the partition suit. The impleadment ``` ``` 4 ``` ``` OP(C) NO. 2489 OF 2023 ``` ``` sought for was allowed, as far back as on 14.03.2022, and on 03.06.2022, the petitioner/ additional 7[th] defendant filed a written statement, specifically claiming exclusion of 1 acre, out of the total extent of 1.85 acres, from the purview of the partition, on the strength of the ‘will’. Thereafter, the matter was posted for trial and the plaintiff’s evidence was completed, whereupon the petitioner/additional 7[th] defendant filed Ext.P7 application seeking to produce the ‘will’. Another application was also filed vide Ext.P9 for receiving an additional witness list. Ext.P7 was dismissed vide Ext.P11 and Ext.P9, vide Ext.P12. ``` ``` 3. Having heard the learned counsel for the petitioner and perused the records, this Court notice that Ext.P7 application is a curt one, with an evasive explanation that the ‘will’ which was sought to be produced was misplaced. It is noteworthy that the impleadment was allowed as far ``` ``` 5 ``` ``` OP(C) NO. 2489 OF 2023 ``` ``` back as on 14.03.2022 and the written statement was filed on 03.06.2022. As observed by the learned Munsiff in Ext.P11 order, the petitioner herein was duty bound to produce the document-based upon which relief was claimed for - along with the written statement, as per Order 8, Rule 1 A of CPC. In case the document is not in his possession, the petitioner ought to have stated, in whose possession such document is. Sub Rule 3 casts an embargo for production of such a document subsequently, except with leave of the Court. The learned Munsiff found that the document was produced quite belatedly, after completion of the plaintiff’s evidence and there is no explanation forthcoming, except a bald assertion that the document was misplaced. The learned Munsiff also took stock of the fact that the entire nature of the suit will be altered, if the document is permitted to be adduced in evidence. ``` ``` 6 ``` ``` OP(C) NO. 2489 OF 2023 ``` ``` 4. Though there is no apparent infirmity with the order impugned, a decision of the Hon’ble Supreme Court is pressed into service by the learned counsel for the petitioner in Levaku Pedda Reddamma & others vs. Gottumukkala Venkata Subbamma & another (Civil Appeal No.4096 of 2022 in SLP(C) No.7452/2022), which frowned upon the orders of the trial Court and the High Court in not permitting the defendants to produce documents, even though the production of the same was delayed. The Supreme Court is of the opinion that such document should have been permitted to be adduced on payment of appropriate cost. ``` ``` 5. In the circumstances, this Court sets aside Exts.P11 and P12 orders and allows Exts.P7 and P9 applications, subject to payment of a cost of Rs.50,000/-(Rupees Fifty Thousand only) to the first respondent/plaintiff, within a period of one month from today. The factum of payment of cost will be ``` ``` 7 ``` ``` OP(C) NO. 2489 OF 2023 ``` ``` reported before the learned Munsiff, whereupon, the suit will proceed, after accepting the documents and the witness list. Needless to say that the plaintiff’s evidence will have to be reopened and the plaintiff will be permitted to adduce evidence on the basis of the new document produced. It is clarified that the time fixed for payment of cost will not be extended, either by this Court or by the trial court, on any circumstance, what so ever. ``` ``` This Original Petition is disposed of, as above. ``` ``` Sd/- C. JAYACHANDRAN JUDGE ``` ``` BR ``` ``` 8 ``` ``` OP(C) NO. 2489 OF 2023 ``` ## **`APPENDIX OF OP(C) 2489/2023`** ``` PETITIONER’S EXHIBITS ``` |`Exhibit P1`|`TRUE COPY OF THE PLAINT IN O.S NO.`| |---|---| ||`174/2016 BEFORE THE HON'BLE MUNSIFF`| ||`COURT, TALIPARAMBA DATED 8-2-16`| |`Exhibit P2`|`TRUE COPY OF THE WRITTEN STATEMENT FILED`| ||`BY THE 1ST DEFENDANT IN O.S NO. 174/2016`| ||`BEFORE THE HON'BLE MUNSIFF COURT,`| ||`TALIPARAMBA DATED 14-3-18`| |`Exhibit P3`|`TRUE COPY OF THE WRITTEN STATEMENT FILED`| ||`BY THE 4TH DEFENDANT IN O.S NO. 174/2016`| ||`BEFORE THE HON'BLE MUNSIFF COURT,`| ||`TALIPARAMBA DATED 16-12-16`| |`Exhibit P4`|`TRUE COPY OF THE I.A NO. 1614/2020 FILED`| ||`BY THE PETITIONER IN O.S NO. 174/2016`| ||`BEFORE THE HON'BLE MUNSIFF COURT,`| ||`TALIPARAMBA DATED 13-7-20`| |`Exhibit P5`|`TRUE COPY OF THE WRITTEN STATEMENT FILED`| ||`BY THE 7TH DEFENDANT IN O.S NO. 174/2016`| ||`BEFORE THE HON'BLE MUNSIFF COURT,`| ||`TALIPARAMBA DATED 3-6-22`| |`Exhibit P6`|`TRUE COPY OF THE AMENDED PLAINT FILED BY`| ||`THE PLAINTIFF`| |`Exhibit P7`|`TRUE COPY OF THE I.A NO. 6/2023 FILED BY`| ||`THE PETITIONER IN O.S NO. 174/2016 DATED`| ||`27-10-23`| |`Exhibit P8`|`TRUE COPY OF THE WILL DATED 25.04.2015`| ||`PRODUCED ALONG WITH I.A NO. 6/2023 BY THE`| ||`PETITIONER DATED 24-4-15`| |`Exhibit P9`|`TRUE COPY OF I.A 7/2023 FILED BY THE`| ||`PETITIONER IN O.S NO. 174/2016 DATED 27-`| ||`10-23`| |`Exhibit P10`|`TRUE COPY OF THE COUNTER FILED BY THE 1ST`| ||`DEFENDANT IN I.A NO. 6/2023 IN O.S NO.`| ||`174/2016 DATED 30-10-23`| |`Exhibit P11`|`TRUE COPY OF ORDER IN I.A NO. 6/2023 IN`| ||`O.S NO. 174/2016 DATED 02.11.2023 OF THE`| ||`MUNSIFF COURT, TALIPARAMBA`| ``` 9 ``` ## **`OP(C) NO. 2489 OF 2023`** ``` Exhibit P12 ``` ``` TRUE COPY OF ORDER IN I.A NO. 7/2023 IN O.S NO. 174/2016 DATED 02.11.2023 OF THE MUNSIFF COURT, TALIPARAMBA (WRONGLY SHOWN IA 6/2023 IN O.S NO. 174/2016 COURT BELOW) ``` ``` RESPONDENT’S EXHIBITS: NIL ```