Najeeb v. Ayshabi and Jameela TM

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 19[TH] DAY OF JULY 2022 / 28TH ASHADHA, 1944** ## **OP(C) NO. 968 OF 2022** **AGAINST THE ORDER DATED 26.05.2022 IN I.A.NO.5 OF 2022 IN O.S.NO.130 OF 2019, ON THE FILE OF THE 2ND ADDITIONAL SUB COURT, ERNAKULAM** ## **PETITIONER/DEFENDANT:** **NAJEEB, AGED 59 YEARS, S/O. MAMMA, THUNDATHIL HOUSE, NETTOOR P.O., MARADU,, PIN - 682040 BY ADVS. K.V.JAYADEEP MENON T.P.RAMESH (THENGUMPILLIL) JINS.P.JOHN P.KRISHNAPRIYA P.RAJEEVE** ## **RESPONDENTS/PLAINTIFFS:** **1 AYSHABI, AGED 65 YEARS, D/O. MAMMA, THUNDATHIL HOUSE, NETTOOR P.O., MARADU VILLAGE,, PIN – 682040 2 JAMEELA T.M, AGED 60 YEARS, W/O. ABOOBAKER, UMMINIPARAMBIL VEEDU, AROOKUTTY P.O., ALAPPUZHA DISTRICT, PIN – 688535 BY ADVS. T.R.HARI KRISHNAN T.K.RADHAKRISHNAN(K/206/1986) S.SREEDEVI(ALP)(S-1532)** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 19.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **O.P.(C)No.968 of 2022** **2** ## **JUDGMENT** **Dated this the 19[th] day of July, 2022** The original petition is filed to set aside the order in I.A.No.5/2022 in O.S.No.130/2019 (Ext.P4) of the Court of the 2nd Additional Subordinate Judge, Ernakulam. 2. The petitioner's case, in a nutshell, relevant for determination of the original petition is : he is the defendant in the above suit, which is filed by the respondents, seeking a decree of partition. The petitioner has filed his written statement to the plaint. There were 10 documents that he proposed to produce in the suit. Unfortunately, his counsel got afflicted with Corona Virus. After his counsel recovered from the illness, the petitioner filed I.A.No.3 of 2022 to remove **O.P.(C)No.968 of 2022** **3** the suit from the Special List, I.A.No.5 of 2022 (Ext.P1) to accept the documents in evidence and Ext.P2 list of documents. The respondents had filed Ext.P3 written objection to Ext.P1 application, inter alia, contending that there was willful latches and negligence on the part of the petitioner in not producing the document as contemplated under Order VIII Rule 1(a) of the Code of Civil Procedure, 1908 (in short 'Code'). The court below, without considering Ext.P1 application its proper perspective, has dismissed the applications by Ext.P4 order. Ext.P4 order is erroneous and wrong. Hence, the original petition. 3. Heard Sri.Jayadeep Menon, the learned counsel appearing for the petitioner and Sri.T.K.Radhakrishnan, the learned counsel appearing for the respondents. 4. Sri.Jayadeep Menon, submitted that the **O.P.(C)No.968 of 2022** petitioner had entrusted all the documents to his counsel. But, as his counsel was afflicted with corona virus, the documents could not be produced at the appropriate stage. His application to reopen the evidence was allowed on cost. Thereafter, the court below has dismissed the Ext.P1 application to accept the documents on record. He relied on the decision of the Honourable Supreme Court in **Levaku Pedda Reddamma & Others v. Gottumukkala Venkata Subbamma & Another 2022 LiveLaw (SC) 533,** wherein the Honourable Supreme Court has held that refusing a party to produce additional documents is untenable, as rules of procedure are hand made of justice. Therefore, even if there is some delay, the trial court ought to accept the documents by imposing some cost. 5. Sri.T.K.Radhakrishnan opposed the above **O.P.(C)No.968 of 2022** **5** submission and contended that the petitioner had got ample opportunity to produce the documents. Ext.P1 application is hit by Order VIII Rule 1 (a) of the Code. The court below has rightly dismissed Ext.P1 by the impugned Ext.P4 order. 6. The question is whether there is any illegality or error in Ext.P4 order. 7. Admittedly, the suit was listed for trial. On the application made by the petitioner, the evidence was reopened on terms. The petitioner paid the costs. Then, the petitioner had filed Ext.P1 application to accept the documents on record, on the ground that his counsel, who was entrusted with the documents, was laid up due to the Corona Virus. Nonetheless, the court below, on the ground that the application was belatedly filed, by the impugned Ext.P4 order, dismissed Ext.P1 application. **O.P.(C)No.968 of 2022** **6** 8. In these pandemic times, when any person can get sick at any time and where the Honourable Supreme Court and this Court suo motu have kept the laws of limitation in abeyance, I am of the view that Ext.P4 is harsh. The court below ought to have taken a lenient view in the matter and allowed Ext.P1, especially after permitting the reopening of evidence that too on costs. 9. Following the principles laid down in **Levaku Pedda Reddamma & Others** (supra), I am of the view that the petitioner's right to let in evidence cannot be foreclosed merely on the ground of delay and he should be given an opportunity to let in his evidence. Thus, I am inclined to allow the original petition. In the result, in exercise of the supervisory powers of this Court, under Article 227 of the **O.P.(C)No.968 of 2022** **7** Constitution of India, I pass the following reliefs:- - (i) Ext.P4 order is set aside - (ii) Ext.P1 application is allowed. (iii) Ext.P2 list of documents is accepted on record. (iv) The court below shall afford the petitioner an opportunity to tender the documents produced with Ext.P2 list in evidence, in accordance with law. (v) In the light of the fact the suit is of the year 2019, the court below shall make every endeavour to dispose of O.S.No.130/2019, in accordance with law, as expeditiously as possible. **Sd/C.S.DIAS Judge** NR/19/07/2022 ## **O.P.(C)No.968 of 2022** ## **8** ## **APPENDIX** **PETITIONER'S EXHIBITS** **Exhibit P1** **THE TRUE PHOTOCOPY OF THE APPLICATION FILED AS I.A. NO.5 OF 2022 IN O.S. NO.130 OF 2019 ON THE FILE OF THE HONOURABLE 2ND ADDITIONAL SUB COURT, ERNAKULAM** **Exhibit P2 THE TRUE PHOTOCOPY OF THE LIST OF DOCUMENTS SUBMITTED IN O.S. NO. 130 OF 2019 ON THE FILE OF THE HONOURABLE 2ND ADDITIONAL SUB COURT, ERNAKULAM** **Exhibit P3 THE TRUE PHOTOCOPY OF THE OBJECTION FILED BY THE RESPONDENTS IN I.A. NO.5 OF 2022 IN O.S. NO.130 OF 2019 ON THE FILE OF THE HONOURABLE 2ND ADDITIONAL SUB COURT, ERNAKULAM.** **Exhibit P4 THE TRUE PHOTOCOPY OF THE ORDER DATED 26.05.2022 IN O.S. NO.130/2019 ON THE FILE OF THE 2ND ADDITIONAL SUB COURT, ERNAKULAM** **Exhibit P5 TRUE PHOTOCOPY OF THE PLAINT IN O.S.NO.130 OF 2019 OF THE 2ND ADDITIONAL SUB COURT, ERNAKULAM** **Exhibit P6 TRUE PHOTOCOPY OF THE WRITTEN STATEMENT FILED ON O.S.NO.130 OF 2019 OF THE 2ND ADDITIONAL SUB COURT, ERNAKULAM**