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Judgment
Thomas P. Joseph, J.—Petitioner made a claim (Ext.P2) to the attached property, 6.07 ares in resurvey No. 298/1/8 under Order XXXVIII Rule 8 of the CPC (for short, "the Code"). When that application came up for hearing learned Principal Sub Judge observed that the petition is not verified by the parties and for that reason, dismissed the same vide Ext.P7, order. That order is under challenge.
I have heard learned Counsel on both sides.
It is pointed out by learned Counsel for respondent that the affidavit in support of Ext.P2, application has not been authenticated by persons competent to do so. Going by copy of the affidavit it is seen that the affidavit is not sworn to before an Advocate or other competent person. Only the deponent has signed in it. Hence the affidavit is defective. But, learned Sub Judge could have granted time to petitioner to cure the defect by filing a proper affidavit rather than straight away dismissing the application which has only resulted in prolonging the case. Having regard to the facts and circumstances and on hearing learned Counsel for both sides I am inclined to think that petitioner has to be given an opportunity to cure the defect by filing a proper affidavit. Resultantly, Ext.P3, order is set aside and Ext.P2, application is remitted to the court of learned Principal Sub Judge, Kollam who shall give petitioner opportunity to cure the defect by filing a proper affidavit within reasonable time to be fixed by the learned Sub Judge. Parties shall appear in that court on 30.10.2010.