V.MADHUSOODHANAN Vs. V.THANKAMONI

JUDGEMENT

(1.) This original petition is filed by the plaintiff in O.S. No.386/1995 of the first Additional Sub Court, Thiruvananthapuram, aggrieved by the common order in IANos. 2887/2016, 2881/2016 and I.A. No.2883/2016.

(2.) Plaintiff had filed the suit against the first and the second defendants for specific performance of agreement of sale dated

(3.) /9/1994 allegedly executed between them. As per the agreement, property comprised therein was agreed to be assigned for a total consideration of Rs.1,10.500/- and advance of Rs.30,000/- was received. Alleging that the defendants failed to perform their part of the agreement, plaintiff has approached this court. The first defendant alone appeared and filed the written statement. She denied the execution of the agreement and alleged that the document was fabricated. She claimed that there was no transaction between herself and the plaintiff. It was also stated that the second defendant was mentally sick and had undergone treatment. 2. Ex parte decree and judgment was passed by the court below. In the meanwhile, first defendant died. Application was filed by the second defendant to set aside the ex parte decree which was dismissed. This was challenged in FAO No. 305/2008. The Division Bench of this Court by Ext.P3 judgment, set aside the order and remanded the matter for fresh consideration. Thereafter, judgment and decree was set aside. It is stated that the second defendant filed a memo adopting the defence set up by the first defendant. No separate written statement was filed by her. The second defendant was examined in the court and the case was posted for evidence. At that stage, plaintiff filed IA Nos. 2887/2016 for re-opening evidence, I.A.No.2881/2019 for directing to produce admitted signature of the first defendant and I.A.No.2883/2016 for directing to verify the signature at the Forensic Lab for expert opinion. These applications were dismissed by a common order, which is assailed in this original petition. 3. Learned counsel for the plaintiff vehemently contended that the second defendant had adopted the written statement of the first defendant, which included an averment that the second defendant was mentally sick. Hence, the question whether the second defendant was capable of contesting the suit on her own was not considered by the court below. It seems that even though the second defendant adopted the written statement of the first defendant, there is no averment in the written statement of the first defendant that the second defendant was mentally unsound and incapable of conducting the suit of her own. It only stated that the second defendant had undergone treatment for mental ailment earlier.