Mayadevi Mittal and Varsha Gupta vs Abraham and Elemma

Thomas P. Joseph, J.—Respondents though served, remains absent. Heard learned Counsel for petitioners.

Petitioners are the plaintiffs in O.S. No. 8 of 1997 of the court of learned Sub Judge, Kattappana. Prayer was to examine witnesses for the plaintiffs on commission at Ernakulam with the assistance of a Hindi-English Translator as the witnesses are not able to understand or depose in Malayalam. According to the learned Counsel P.W.1 (who is examined in part) and all other witnesses are ill and unable to go to Kattappana to give evidence. It is stated that P.W.1 who was examined in part is now on wheelchair. Petitioners have produced Exts.P5 and P6, medical certificates concerning P.W.1 and plaintiff No. 2. It is seen that those medical certificates were not produced before the learned Sub Judge. Learned Counsel states that there was no written objection preferred by the respondents and that is why the medical certificates were not produced before learned Sub Judge. It is seen from the order under challenge that application was opposed by the respondents-defendants. Since learned Sub Judge did not get opportunity to peruse the medical certificates it is only proper that the matter is send back to the learned Sub Judge for fresh consideration and decision. If as petitioners say as P.W.1 is on wheelchair that is a matter which learned Sub Judge has to consider sympathetically. Hence Ext.P4, order cannot be sustained and is liable to be set aside.

Resultantly, this Writ Petition is allowed. Exhibit P4, order is set aside and I.A. No. 632 of 2010 is remitted to the court of learned Sub Judge, Kattappana for fresh decision after giving both sides opportunity to adduce evidence. It will be open to the petitioners to produce the medical certificates before the learned Sub Judge. Learned Sub Judge shall pass appropriate orders on I.A. No. 632 of 2010 as early as possible.