SHOUKATH Vs. ISMAIL

JUDGEMENT

(1.) DEFENDANT No.7 in O.S.No.80 of 1986 of the court of learned Additional Sub Judge, Palakkad challenges Ext.P10, order dismissing I.A.No.2400 of 2004 seeking stay of further proceedings in I.A.No.2202 of 2001 filed by respondent No.1 for passing final decree. When the application for passing final decree was pending, petitioner and others filed I.A.No.2400 of 2004 contending that preliminary decree is null and void as it was obtained by playing fraud on the court. The suit was filed on 04.03.1986 where respondent No.1 described him as son of Muhammed Kutty Kurukkal. DEFENDANT Nos.1 and 2 are the parents and defendant Nos.3 and 4 are brothers of the said Muhammed Kutty Kurukkal. In I.A.No.2400 of 2004 it is stated that on verification of the school admission registers of respondent No.1 it is revealed that he is not the son of Muhammed Kutty Kurukkal but, son of Muhammed. If he is son of Muhammed he has no right of inheritance in the property of Muhammed Kutty Kurukkal. Thus the preliminary decree has been obtained by playing fraud and suppressing the real facts. Petitioners in I.A.No.2400 of 2004 produced Exts.A1 and A2, extract from the relevant admission registers of the schools concerned where Ismail M. is stated as son of K.Muhammed. Application was opposed by respondent No.1. He denied the allegation that he is not the son of Muhammed Kutty Kurukkal. Learned Sub Judge found that there is no merit in the contention raised in I.A.No.2400 of 2004 and dismissed that application. That order is under challenge in this Writ Petition. It is contended by learned counsel that in I.A.No.2400 of 2004 petitioners did not get sufficient opportunity to adduce oral evidence. Learned counsel contends that the name of father and address given in the plaint substantially vary from the that given in Exts.A1 and A2.

(2.) IT is not as if Exts.A1 and A2 are admitted by respondent No.1. He claimed that it relates to somebody else. The whole case of petitioners in I.A.No.2400 of 2004 is based on Exts.A1 and A2 which is not proved to be relating to respondent No.1. In the circumstances learned Sub Judge was not inclined to accept the case of fraud set up by petitioners in I.A.No.2400 of 2004. IT is difficult to believe that defendant Nos.1 and 2 who are parents of Muhammed Kutty Kurukkal and defendant Nos.3 and 4, his brothers were not aware until I.A.No.2400 of 2004 was filed in the year 2004 (the suit was filed in the year 1986 at a time when respondent No.1 was aged 21 years) that respondent No.1 is not the son of Muhammed Kutty Kurukkal. IT is also difficult to believe that they got information that respondent No.1 is not the son of Muhammed Kutty Kurukkal from Exts.A1 and A2 which itself is not proved to be relating to respondent No.1. Learned Sub Judge has observed that the sole object of filing I.A.No.2400 of 2004 was to protract the proceeding. I have no reason to differ. Writ Petition is dismissed.