K P SAFIYA Vs. KOVVAPRAVANTAKATH MAMMU

JUDGEMENT

(1.) A hypertechnical approach made by the trial court has resulted in the delay in disposal of the suit of 2001 till 2005. The suit was filed by the respondent, who is the husband of the appellant, for a mandatory injunction directing the appellant/defendant to vacate the plaint schedule house. The respondent contended that the appellant was married by him, but he pronounced "talak". Therefore, according to him, the appellant has no right to continue her residence in the plaint schedule house and that she is liable to vacate the house. The appellant/defendant disputed the 'talak' and contended that she is the wife of the respondent/plaintiff and, therefore, she has every right to reside in the plaint schedule house. The appellant also raised other contentions, which are not relevant at present.

(2.) Before the trial court, the case was posted for the evidence of the appellant/ defendant on 20.1.2003. It would appear that the practice being followed by that court is that the proof affidavit under Rule 4 of Order XVIII of the Code of Civil Procedure should be filed at least three days before the date fixed for examination of the party or witness. The appellant having filed the proof affidavit only on 20.1.2003, the date fixed for the evidence of the defendant, the trial court rejected the proof affidavit and closed the evidence. The suit was decreed. The defendant filed appeal before the lower appellate court challenging the judgment and decree of the trial court. The lower appellate court held that the Code of Civil Procedure does not specify when the proof affidavit should be presented before the trial court and that it is left to the discretion of the court conducting the trial. It was also held by the appellate court that the trial court "cannot insist as a rule" that the affidavit be filed as directed by it. However, the lower appellate court considered the evidence already on record and without having an opportunity to consider the evidence of the defendant, held that the plaint claim is established and confirmed the decree passed by the trial court.

(3.) The following substantial questions of law have been raised by this Court: