JORTIN ANTONY Vs. PADMANABHA D MARTHANDA VERMA

JUDGEMENT

(1.) What is under challenge is the permission granted to His Highness Marthanda Varma of the Travancore Royal Family by the II Additional Sub Judge, Thiruvananthapuram, to examine his nominee one S. Parameswaran Nair as his agent on behalf of the defendants 1 to 5 in O.S. No. 1170/95 of the II Additional Sub Court, Thiruvananthapuram. The Civil suit was instituted by the present revision petitioners based on an agreement to sell executed by the members of the Royal Family including the 1st defendant - His Highness Marthanda Varma agreeing to convey 20 acres forming part of the Kowdiar Palace Compound at Thiruvannanthapuram. Overruling the objections of the plaintiffs, the Court below held that I.A. No. 56/99 seeking permission for examination of Sri S. Parameswaran Nair on behalf of the defendants 1 to 5 was maintainable and granted that relief.

(2.) Mr. P. Sukumaran Nair, who represented the revision petitioners, submitted that the impugned order is illegal and works out gross injustice. He points out that in the nature of the case, it is essential that the 1st defendant himself should be examined in so far as the relevant aspects to be brought out are matters within the knowledge of the 1st defendant alone personally. It is also pointed out that this is of utmost importance because the defendants have failed to answer properly the interrogatories served on them and a viva voce examination as allowed under Order 11 Rule 11 of the Code of Civil Procedure is essential in the circumstances. Yet another contention is that the agent - Sri S. Parameswaran Nair admittedly is a person who has knowledge about the affairs of the Royal Family only from the year 1997 and as such one totally incompetent to speak about the details relating to the agreement to sell executed between the parties on 4.7.1993 and of subsequent events of vital importance. The learned Counsel further submits that the Power-of-Attorney originally executed by the defendants 2 to 5 in favour of the 1st defendant having been subsequently revoked, the 1st defendant himself was not competent to represent the defendants 2 to 5 and that as such the question of Sri S. Parameswaran Nair deposing on behalf of the defendants 2 to 5 does not arise at all. All the same, the plaintiffs have no objection in the said Parameswaran Nair being examined as a witness for the defendants; but as made clear at the Bar, that is not what the defendants want. They want examination of the said person as their agent for and on their behalf

(3.) The learned Counsel for the respond ents, at the outset, challenged the maintainability of the revision based on the decision in Ittoop v. Venkittan Embrandiri, where it was provided that no revision would lie from an interim order passed in exercise of discretion available with Court and without adjudicating the rights of the parties and that it cannot be taken 'as a case decided' for the purpose of Section 115 of the C.P.C. There is no merit in this contention. It is well-settled that an order passed under Section 115 of the C. P. C is subject to the revisional jurisdiction under Section 115 of the C.P.C. The impugned order substantially affects the rights of the parties and is not appealable. It is not a purely discretionary order as involved in the decision cited. In the circumstances, I am of the view that the revision is maintainable.