SIVANANDAN THILAKAN Vs. THANKAMMA OMANA

JUDGEMENT

(1.) Appellant is the plaintiff. He filed the suit for declaration that he is not the father of the second defendant. First defendant is the unwed mother of the second defendant. Plaintiff also sought for permanent injunction restraining the first defendant from executing the order of maintenance under S.125 Cr.P.C. in favour of the second defendant granted by the Judicial Magistrate of First Class, Punaloor. The Trial Court decreed the suit granting declaration in favour of the plaintiff, but disallowed the prayer for injunction. Defendants filed A.S.No.20 of 1983 before the Sub Court, Kottarakkara. The learned Sub judge allowed the appeal and dismissed the suit.

(2.) Learned counsel for the plaintiff (appellant) submitted that the Sub Judge went wrong in relying on the order of the Magistrate granting maintenance to the second defendant and as he adopted such a basically wrong approach this Court has necessarily to interfere and the decree of the Munsiff in the suit has to be restored. Learned counsel for the defendants pointed out that the said contention is not tenable as it is a case where the Sub Judge has analysed the evidence on both sides and has come to a finding on that basis and merely because reference has been made to the order of the Magistrate granting maintenance to the second defendant it cannot be said that the Sub Judge has adopted a basically wrong approach.

(3.) On the side of the plaintiff he alone was examined. On the side of the defendants D.Ws. 1 to 7 were examined. D.W. 1 is the first defendant. She tendered evidence in support of her case. She stated that as a result of her intimacy with the plaintiff second defendant was born to her. D.W.2, Secretary, of the S.N.D.P. Sagha No. 1785 deposed that on receipt of the complaint from the father of the first defendant (D.W.7) he had occasion to negotiate with the parents of both the parties and plaintiff's father had told him that the plaintiff was not in station and when he returned some decision can be taken in the matter. D.W.3 is the Branch Secretary of the Communist Party of India, Kadassery. His evidence corroborates the testimony of D.W.2. D.Ws.4 and 6 stated that they had occasion to see the plaintiff and the first defendant together in the nearby forest. D.W.7's evidence lends considerable support to the testimony of D.W.1 and that of D.Ws.2 and 3 with regard to the negotiations that followed as a result of the first respondent's conception and the allegation against the plaintiff for that.