THOMAS Vs. SUB ORDINATE JUDGES COURT

JUDGEMENT

(1.) This Writ Petition is filed to issue a writ of certiorari or other appropriate writ order of direction to quash Ext. P2 order of the first respondent and permit the petitioners to mark Ext. P1 document without paying the penalty of the bond in the trial of the suit O.S. No. 1037/1997 pending before the Sub Court, Thrissur.

(2.) The petitioners are the plaintiff in O.S. No. 1037 of 1997. The suit is for recovery of a sum of Rs. 2,19,800/- from respondents 2 and 3. The case of the petitioners is that the second respondent has availed a loan of Rs. 2, 19, 800/- for enabling him to purchase a bus. Later, the second respondent has resiled from his promise to repay the amount even after the passage of time. So, the petitioners have approached the third respondent, father of the second respondent. The third respondent has voluntarily came forward to settle the matter by executing a "Vyavastha" for the discharge his son's debt in favour of the petitioners. The said Vyavastha is drafted in the form of a karar, in lay-man's language. The mediators who intervened the matter has also affixed their names and signatures. Even after the execution of Ext. P1, the third respondent has not offered any payment at all. Hence the suit is filed for realisation of the amount based on Ext. P1 document.

(3.) The third defendant alone contest the suit. He filed written statement denying the allegation in the plaint except the fact that the second respondent is his son. After framing the issues, the Trial Court has proceeded with the trial of the suit putting in the special list. On 20.3.2000, the first petitioner was examined as PW-1. During his testimony along with other document he attempted to mark Ext. P1 document from his side. The counsel for the third respondent has objected the marking of the document alleging that it is insufficiently stamped. The court below then uphled the contention and immediately ordered that the penalty must be paid. But the amount which is to be remitted as penalty was not decided immediately. For its determination, the examination of the first petitioner has been abruptly stopped so as to constitute the document as a bond. The court below has patently erred in appreciating the essential ingredient of the bond that it is an obligation to pay the amount which is created originally by the instrument itself and not at all an acknowledgment of a preexisting liability of a debt. By Ext. P1 document, the third respondent has only acknowledged his son's liability existing quite earlier. That being so, the liability of the third respondent is not a new one created by the document. The petitioners have already produced other documents which would go to show that the liability to pay is existing otherwise, independent of Ext. P1 document. That being so, Ext. P1 document never fall in the category of the bond. The Trial Court passed Ext. P2 order, against which this original petition is filed.