PARUKUTTY AMMA Vs. THANKAMMA AMMA

JUDGEMENT

(1.) The first defendant challenges the order passed by the Munsiff Court, Ottapalam. The plaintiff filed a suit for injunction. Defendants 1 to 3 contended that the plaintiff has no title and possession of the plaint schedule property. Further, they contended that the title deed of the plaintiff is not genuine but a bogus one. These contentions were raised on the ground that the first defendant has transferred the property in favour of the plaintiff. When the execution of the document of title relied on by the plaintiff was denied by the first defendant, the plaintiff wanted the court to obtain the expert opinion regarding the thumb impression in the document. For the comparison of the thumb impressions he filed an application before the court to obtain a thumb impression of the first defendant. The first defendant made a representation that she is not in a position (of course now she is aged 77) to present herself before the court. So, the court appointed an officer of the court to get the thumb impressions of the first defendant for the purpose of sending the same to an expert. The plaintiff deposited the required amount of Rs. 2,270/-. The specimen thumb impressions taken by the officer of the court along with the document were sent to the expert for opinion. The expert opined that the specimen thumb impressions are blurred and cannot be used for a proper identification and he is not in a position to give an expert opinion. The expert has demanded his fees and wanted the court to issue a cheque for Rs. 2,270/-. This was objected to by the plaintiff on several grounds. The court rejected all the objections and allowed the application for issuance of a cheque. This order allowing the expert to withdraw the amount in deposit in court is the subject matter of CRP. No. 1097 of 1986.

(2.) The plaintiff again moved the court for directing the first defendant to appear before the court and to give her thumb impressions before the court itself. That petition was allowed on 16-9-1985. The first defendant filed an Interlocutory Application, I. A. No. 1011 of 1985, in order to review the above said order. The court dismissed the review application on 30-9-1985. So, the order passed by the court to appear before the court for giving a thumb impression was made final and was in force. A notice was served on the first defendant to appear and to give the thumb impression. The first defendant did not appear. But her husband filed an affidavit on 3-10-1985 stating that she is not in a position to appear before the court because of her illness. From the order, it is clear that the court below was not willing to accept the affidavit of her husband. In these circumstances, the plaintiff filed an application stating that the first defendant is deliberately disobeying the orders of the court in declining to appear before the court for the purpose of giving her thumb impression. The plaintiff prayed for striking off the defence of the first defendant on the ground of disobedience of the court's order and non cooperation with the court. That application was considered by the Trial Court and the Trial Court passed the impugned order stating that "in these circumstances, this court is of the opinion that the contentions advanced on behalf of the first defendant do not deserve any merits. They deserve to be rejected. Accordingly the contentions of the first defendant are rejected and the contentions of the plaintiff are upheld. Hence this point is found in favour of the plaintiff". The court allowed the application, striking out the defence of the first defendant with costs of the plaintiff. It is seen from the order that the court has been led to consider the matters which were not very relevant for consideration. A detailed enquiry as to the content and scone of S.45 and S.73 of the Evidence Act was considered by the court below. Further, it is seen that the court below has also considered the scope and content of R.16, O.6 of the Code. Anyhow, ultimately the court found that the application has to be allowed.

(3.) Counsel for the revision petitioner also advanced arguments of course with ability. But I have to say that be also argued the case on the basis of O.6, R.16, and S.73 of the Evidence Act. A senior counsel appearing for the respondent also tried to counter the argument and also cited decisions concerning Art.20 (3) of the Constitution. Since the counsel on both sides cited several decisions which are not of much help to decide the real questions involved in this case, I do not want to discuss those decisions in detail. The counsel for the revision petitioner and the respondent cited the following decisions. I shall give a list of these decisions. 1988 (38) Ch. D. 263, AIR 1951, Nag. 412, AIR 1976 Goa 74, 1972 MLJ 119, 1925 Cal. 860. 1985 KLT 695 , 1987 (2) KLT 644 . 1986 KLT, 655, 1983 KLT 281 , 1987 KLT 245 , AIR 1961 SC 1808 , AIR 1960 Ker. 390 , AIR 1952 Raj. 157, AIR 1958 Allahabad 350; AIR 1960 All. 573, AIR 1965 Patna 156; AIR 1983 Raj. 23; AIR 1976 MP 64.