## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
## **THE HONOURABLE MR. JUSTICE ASHOK MENON**
**WEDNESDAY,THE 17TH DAY OF OCTOBER 2018 / 25TH ASWINA, 1940**
## **OP(C).No. 2169 of 2017**
**AGAINST THE ORDER/JUDGMENT IN OS 111/2007 of SUB COURT, MUVATTUPUZHA**
## **PETITIONER/S:/DEFENDANTS**
**1 RINCY AGED 39, D/O.SEBASTIAN, VALIKULATH HOUSE, MOOLAMATTOM PO, IDUKKI DISTRICT-685589.**
**2 LINDA MINOR AGED 15, D/O.LATE AVERRELL, VALIKULATH HOUSE, MOOLAMATTOM PO, REPRESENTED BY HER MOTHER/ NEXT FRIEND, RINCY, AGED 39, D/O.SEBASTIAN, VALIKULATH HOUSE, MOOLAMATTOM PO, IDUKKI DISTRICT-685589.**
**BY ADVS. SRI.V.PHILIP MATHEW SRI.GIBI.C.GEORGE**
## **RESPONDENT/S:/PLAINTIFFS :**
**1 SOBHANA M.V AGED 38, D/O.VYRONI, CHARAPPATTU HOUSE, THRIKKALATHOOR P.O, MULAVOOR VILLAGE, MUVATTUPUZHA, ERNAKULAM DISTRICT-683541. 2 GEORGE (MINOR) AGED 10, S/O.SHOBHANA, CHARAPPATTU HOUSE, THRIKKALATHOOR P.O, MULAVOOR VILLAGE, MUVATTUPUZHA, MINOR REPRESENTED BY HIS MOTHER/NEXT FRIEND SOBHANA M.V., AGED 37, D/O.VYRONI, CHARAPPATTU HOUSE, THRIKKALATHOOR P.O, MULAVOOR VILLAGE, MUVATTUPUZHA, ERNAKULAM DISTRICT-683541.**
**BY ADV. SRI.M.V.PAULOSE**
**THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 31.7.2018, THE COURT ON 17.10.2018 DELIVERED THE FOLLOWING:**
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## J U D G M E N T
The petitioners are defendants and the respondents are the plaintiffs in OS No.111/2007, a suit for partition, on the file of Sub Court, Muvattupuzha. The petitioners are before this Court challenging the order of the learned Munsiff to re-examine the first defendant in OS No.111/2007.
2. The facts in brief are thus:
OS No.111/2007 was filed by the respondents herein against the petitioners herein. The first plaintiff claims that she had married late Averrel George in the year 2003 and that in that wedlock the second plaintiff was born. Before marrying the first plaintiff, late George Averrel was married to the first defendant in the year 2000. They fell out and the relationship got strained. The fist defendant went back to her paternal home, and there, she gave birth to the second defendant. It is during that period that late Averrel George married the first plaintiff. Subsequently, the first defendant and the Averrel George filed Original Petition No.458/2007 before the Family Court for divorce by mutual consent and the same was granted on 10.4.2007. The deceased George Averrel had settled 1/4[th] of the property
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in favour of his daughter, the second defendant, and regarding the remaining 3/4[th] share, he allegedly executed a Will in favour of the first plaintiff and her unborn child, on 2.4.2007. He died on 20.4.2007. The plaintiffs thereafter filed the suit for partition claiming 3/4[th] share of the property to be allotted to them in accordance with the Will executed by the deceased.
3. The petitioners herein filed written statement denying the marital relationship between late George Averrel and the first plaintiff and it is contended that the first plaintiff is a lady of promiscuous character and is actually the legally wedded wife of one K.V.Mohanan. She has been cohabiting with several men and there is no legally valid relationship between her and late Averrel George. The averment in the plaint that the first plaintiff and late Averrel George were residing in the house situated in the plaint schedule property as husband and wife is also denied by the defendants. It is further stated that late Averrel George had consequent to the divorce by mutual consent, also executed a compromise deed regarding the properties and a compromise order was passed by the Family Court produced at Ext.P3. Averrel George had thereafter executed a Will on 12.4.2007
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bequeathing his property in favour of the second defendant, his only daughter. The said Will is his last Will and it is contended that the Will propounded by the plaintiffs purportedly executed by the deceased on 2.4.2007, is forged and fabricated.
4. The trial began and eight witnesses and ten documents were let in evidence by the plaintiffs. Ext.P4 is the proof affidavit filed by the first plaintiff. Thereafter, the first plaintiff filed IA 1086/2015 produced at Ext.P5 alleging that the defendants have produced some forged documents and a long witness list and hence it has become necessary to depose about those documents and witnesses, and therefore, requested herself to be recalled and re-examined.
5. The defendants objecting to the recalling of the PW1, filed Ext.P6 objection stating that the affidavit does not disclose the purpose for which PW1 has to be recalled and re-examined. The allegation in the affidavit that the defendants had produced some forged documents is also not true and if at all PW1 is to be recalled, she can be allowed only to depose regarding the contents of the documents produced by the defendants. An additional proof affidavit was also filed by the first plaintiff produced at Ext.P7, and IA No.1086/2015 was
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allowed, and thereafter, the plaintiffs filed IA No.1191/2015 produced at Ext.P8 stating that the defendants had produced the Will purportedly executed by late Averrel George on 12.4.2007 and that it is a forged one, and it is also stated that defendants have also produced a witness list and 18 documents after the examination of the plaintiffs and therefore, it was prayed that the order on IA No.1086/2015 be reviewed and the plaintiffs be allowed to adduce as much evidence as is desirable to disprove/discredit the Will propounded by the defendants. The defendants filed objections produced at Ext.P9 stating that there is no error apparent on the face of the record which calls for a review. But vide Ext.P10, IA No.1191/2015 was allowed. The defendants approached this Court by filing OP(C) No.182/2016 challenging Ext.P10. This Court set aside the impugned order with a direction to re-consider the matter and pass appropriate order complying with the provisions of Rule 186 of the Civil Rules of Practice. Thereafter, the learned Sub Judge re-considered IA No.1191/2015 and passed an order produced at Ext.P12, allowing the review application stating that obviously the petitioners have liberty to adduce relevant evidence relating to the facts and the issues, and the respondents have liberty
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to further cross examine. The defendants again approached this Court by filing OP(C) No.1417/2016. The plaintiffs/petitioners filed IA No.1296/2016 in the OP(C) before this Court seeking permission to withdraw IA No.1191/2015 and that was allowed by this Court. In view of the withdrawal of IA No.1191/2015, Ext.P12 order passed by the Sub Court in IA NO.1191/2015 become redundant and the OP(C) was closed.
6. The defendants now approached this Court submitting that in view of the withdrawal of IA 1191/2015, the first plaintiff is not entitled to examine the defendants again and therefore, the Court below may not be permitted to examine the defendants again in OS 111/2007 in view of Ext.P13 judgment of this Court, allowing IA No.1191/2015 to be withdrawn.
7. The learned counsel for the petitioners herein submits that in view of the withdrawal of IA No.1191/2015, the earlier order in IA No.1086/2015 which merged with the later reviewed order, cannot be revived. It is submitted that, in view of the review petition (IA No.1191/2015) being withdrawn, nothing survives and hence, the plaintiffs cannot now be allowed to be examined afresh. In support of his argument, the learned counsel for the petitioners relies on the decisions of
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the Honourable Supreme Court in 2000 KHC 636 [Kunhayammed v. State of Kerala], 2001 KHC 1118 [Amba Bai and Others v. Gopal and Others], 2017 KHC 400 [Aniyan V.M. (Prof) v. University of Calicut and Another] and 2017 KHC 594 [Mathai and Others v. Thomas and Others] . The situation described in the decisions relied upon by the petitioners are not akin to the one in the instant case. The plaintiffs had filed IA No.1086/2015 for permitting the first plaintiff to re-examine the first defendant for the purpose of testifying about the documents which are produced by the defendants subsequent to her examination. The defendants had filed an objection to IA No.1086/2015 produced at Ext.P6 wherein it is submitted that if the Court is inclined to allow the application, PW1 can be allowed to depose only with regard to the contents of the documents produced by the defendants. On that basis, the application was allowed. But, then the first plaintiff wanted herself to be examined on all aspects regarding the Will propounded by the defendants and hence sought review. The review application was allowed by the court and later when that was challenged before this Court by the defendants, the review application was withdrawn as not pressed. According to the plaintiffs, the original order in IA No.1086/2015 is restored in case the review
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application and the order made therein are withdrawn. But the argument of the learned counsel for the petitioners herein is that in view of the merger of the original order with later order consequent to the withdrawal of the review application, there is no existence for the original order and therefore, the plaintiff cannot now be recalled for examination. The points of merger discussed in the decisions relied upon by the learned counsel for the petitioners herein are in totally different circumstances. Those discuss the merger of final orders with the earlier orders and the appellate judgments with the original judgments. In the instant case, it is a very simple case where review was sought and allowed, and later on when the plaintiffs did not want the review, the review was recalled.
Whether the plaintiffs can be allowed to examine to testify regarding the documents subsequently produced by the defendants or not is the simple question to be answered and there is absolutely no embargo in doing so because even the defendants had in the objections conceded to examination of the plaintiffs for the limited purpose of answering the documents which admittedly the defendants had produced consequent to the examination of PW1. I find no reason to interfere with the proceedings of the trial
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court to proceed with the examination of the first plaintiff for the limited purpose of testifying about the documents produced by the defendants consequent to the examination of the first plaintiff. The Original Petition fails and the same is accordingly dismissed. No costs.
## **Sd/-**
## **ASHOK MENON**
## **JUDGE**
## APPENDIX
## PETITIONER'S EXHIBITS
EXT.P1 COPY OF PLAINT IN OS 111/2007 EXT.P2 COPY OF WRITTEN STATEMENT FILED BY THE PETITIONERS IN OS NO.111/2007. EXT.P3 COPY OF ORDER DATED 10.4.2007 PASSED BY THE FAMILY COURT, ERNAKULAM IN OP NO.1351/06. EXT.P4 COPY OF PROOF AFFIDAVIT FILED BY THE FIRST RESPONDENT IN OS NO.111/2007. EXT.P5 COPY OF IA NO.1086/15 IN OS NO.111/2007 EXT.P6 COPY OF OBJECTION DATED 30.11.2015 FILED BY THE PETITIONERS IN IA NO.1086/2015. EXT.P7 COPY OF ADDITIONAL PROOF AFFIDAVIT DATED 21.11.2015 FILED BY THE FIRST RESPONDENT IN OS NO.111/2007. EXT.P8 COPY OF IA NO.1191/15 FILED BY THE RESPONDENTS IN OS NO.111/07.
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|EXT.P9|COPY OF OBJECTION FILED BY THE PETITIONERS IN|
|---|---|
||IA NO.1191/15.|
|EXT.P10|COPY OF ORDER DATED 11.1.2016 PASSED BY THE|
||SUB COURT, MUVATTUPUZHA IN IA NO.1191/15 IN OS|
||NO.111/07.|
|EXT.P11|COPY OF JUDGMENT DATED 01.03.2016 PASSED BY|
||THIS HON'BLE COURT IN OPC NO.182/2016.|
|EXT.P12|COPY OF ORDER DATED 25.5.2016 PASSED BY THE|
||SUB COURT, MUVATTUPUZHA IN IA NO.1191/15 IN OS|
||NO.111/07.|
|EXT.P13|COPY OF JUDGMENT DATED 6.1.2016 IN OPC|
||NO.1417/2016.|
||//TRUE COPY//|
jg
