BEFORE THE HONOURABLE HIGH COURT OF KERALA,

ERNAKULAM

O.P(C) No. of 2024

Shyni : Petitioner/Petitioner/Plaintiff.
Vs.

Shylaja & 4 others : Respondents/Counter Petitioners/Defendants.

.SYNOPSIS

1. The petitioner in I.A.No.2 of 2024 who is also the plaintiff in O.S.No.99 of

2021 on the file of the Civil Judge (Junior Division) Idukki is the petitioner in the
above original petition. Respondents are the respondents in the I.A. and defendants
in the suit. The suit is filed by the plaintiff who is one of the legal representatives of
deceased Kumaran for partition. The respondents are the other children and wife of
deceased Kumaran.

2. In the suit, separate written statements are filed by defendants 1 and 4

contending that the plaint A to C schedule property which are sought to be
partitioned are not partible. When the suit was about to be listed for trial, the
petitioner filed I.A.No.2 of 2024 for permitting her to conduct the case to give
evidence etc. through her authorized agent who is none other than the divorced wife
of her brother who is conversant with the facts of the case. She is in possession of
the plaint schedule property and is residing with her children in the building in the
schedule property. The petition was filed producing copy of the power of attorney.

3. The court below after hearing the parties rejected I.A.No.2 of 2024 by passing
Ext.P6 order. Ext.P6 order is under challenge in the above original petition.

Dates and Events

06.09.3023 - Copy of Plaint in O.S.No.99 of 2021 on the file of the Civil Judge
(Junior Division), Idukki. (Ext.P1)

Copy of written statement filed by the 1st defendant in O.S.No.99 of

2021 on the file of the Civil Judge (Junior Division), Idukki. (Ext.P2)
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07.09.2024 Copy of written statement filed by the 4 th defendant in O.S.No.99 of

2021 on the file of the Civil Judge (Junior Division), Idukki. (Ext.P3)

06.09.2023 Copy of memo filed by defendants 1 & 2 in O.S.No.99 of 2021 on the

file of the Civil Judge (Junior Division), Idukki. (Ext.P3(a)

02.07.2024 Copy of Power of Attorney executed by the plaintiff in the suit in

O.S.No.99 of 2021 on the file of the Civil Judge (Junior Division),
Idukki. (Ext.P4)

07.08.2024 I.A.No.2 of 2024 filed by the plaintiff in O.S.No.99 of 2021 on the file of
the Civil Judge (Junior Division), Idukki. (Ext.P5)

11.09.2024 Order in I.A.No.2 of 2024 in O.S.No.99 of 2021 of the Civil Judge

(Junior Division), Idukki. (Ext.P6)

PROVISIONS OF LAW CANVASSED

Code of Civil Procedure

Dated this the 11th day of November 2024

COUNSEL FOR THE PETITIONER

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BEFORE THE HONOURABLE HIGH COURT OF KERALA,

ERNAKULAM

O.P(C) No. of 2024

(Against the order dated 11.09.2024 in I.A.No.2 2024 in O.S.99 of 2021 on the file of
Civil Judge (Junior Division), Idukki)

PETITIONER/PETITIONER/PLAINTIFF

Shyni, W/o.Sasi (Mistakenly stated as W/o.Saji in the cause title of the

order) Kattuvettath House, Thopramkudy Kara, Vathikudy Village,
Idukki Taluk, PIN - 685 604

RESPONDENTS/Cr.PETITIONERS/DEFENDANTS

1. Shylaj, W/o.Dr.Raghu, Dharmalayathil House,

(Ortho One Hospital), Vellayamkudy Kara,
Kattappana Village, PIN – 685 515

2. Jayamol, W/o.Subhas, Parackal House, Muttam Kara,

Muttom Kara, Muttom Village, PIN – 685 587

3. Mohandas, S/o.Kumaran, Kochuparambil House,

Padamugham Kara, Vathikudy Village, Idukki, PIN - 685 604

4. Sarojini, W/o.late Kumaran, Kochuparambil House,

Padamugham Kara, Vathikudy Village, Idukki, PIN……..
now residing at Dharmalayathil House,
(Ortho One Hospital), Vellayamkudy Kara,
Kattappana Village, PIN – 685 515
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The petitioner above named begs to state as follows:

1. The petitioner in I.A.No.2 of 2024 in O.S.No.99 of 2021 on the file of the Civil
Judge (Junior Division) Idukki who is also the plaintiff in the suit also, is the petitioner
in the above original petition. The respondents herein are the respondents in the I.A.
who are defendants in the suit. The above original petition is filed challenging the
order passed by the Civil Judge dated 11.09.2024 in I.A.No.2 of 2024. The petition
is filed by the petitioner for permitting her to appear and to give evidence in the suit
through her recognized agent for which she had executed a Power of Attorney. The
petition is filed producing copy of the above Power of Attorney as well. The I.A. filed
is now rejected against which no appeal is provided under Order 43 Rule 1 CPC and
also under Section 104 of the Code of Civil Procedure. Since no revision is also
maintainable under Section 115 of the Code of Civil Procedure in view of the
pronouncement of the Apex Court. Had the petition been allowed, it would not have
put an end to the proceedings in the Lower Court. Since neither appeal nor revision
is provided, the only remedy available to the petitioner to challenge the order passed
on the I.A. is to invoke the supervisory jurisdiction of this Hon’ble Court under Article
227 of the Constitution of India. Hence this original petition.

2. The short facts necessary for appreciation of the original petition as stated in
the suit are as follows:

3. The plaintiff’s father Kumaran was in possession/ownership of different items

of property, some of which are non-patta land. Kumaran died intestate on
14.07.2018. The plaintiff is one of the legal representatives of deceased Kumaran
being one of his daughters. Respondents 1 and 2/defendants 1 & 2 are the other 2
daughters. The 3rd respondent is the son and the 4th respondent is the wife of the
deceased and mother of the other defendants and the plaintiff. They are the only
legal representatives of deceased Kumaran.

4. Claiming partition of different items of property that stood in the name of the
deceased, the suit O.S.No.99 of 2021 was filed. 3 schedules were there – plaint A to
C schedule which are having an area of 1.25 cres. 50 cents and 1.20 acres
respectively. Deceased Kumaran belong to Hindu Ezhava community who was
governed by the provisions of the Hindu Succession Act for the purpose of intestate
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succession. Therefore the plaintiff claimed partition by metes and bounds and
claimed 1/5 share over plaint A to C schedule property contending that deceased
had died intestate and that the legal representatives are entitled to succeed to his
estate equally.

5. Defendants 1 and 4 filed separate written statements. The defendants 1 & 2

had also filed a memo in the suit stating that the 2 nd defendant is adopting the
contention of the 1st defendant. 3rd defendant is declared exparte. The 4 th defendant
also filed separate written statement denying the claim for partition and contending
that deceased Kumaran had executed gift deeds in favouring respondents 1, 2 and
4. The 4th respondent also contended that there is a Will after which a portion of the
property covered by the Will is bequeathed by him in favour of the 2nd defendant.

6. On the basis of the pleadings, the Court proceeded to conduct trial. While
so, the Power of Attorney referred above is executed by the plaintiff in favour of the
divorced wife of his brother’s wife who herself is residing in the house in the plaint
schedule property and who is claiming possessory right in the plaint schedule
property. True copy of the plaint in O.S.No.99 of 2021 dated 02.12.2021 is produced
herewith and the same is marked as EXHIBIT.P1. Copies of the written statements
filed by respondents 1 and 4 are produced herewith and those are marked as
EXHIBITS.P2 & P3. Copy of the memo dated 06.09.2023 filed by defendants 1 &2
is also produced herewith as EXHIBIT.P3(a). True copy of the Power of Attorney
dated 02.07.2024 is produced herewith and the same is marked as EXHIBIT.P4.
Copy of the petition – I.A.No.2/2024 dated 07.08.2024 is produced herewith and the
same is marked as EXHIBIT.P5. No objection is filed to the above petition by any of
the respondents. They also did not seriously argue the matter also in the Court.

7. There are other civil litigations and also criminal cases pending in connection
with the above family dispute.

8. The court below heard petition I.A.No.2 of 2024 and dismissed the same by
order dated 11.09.2024. Copy of the said order is produced herewith and the same
is marked as EXHIBIT.P6. It is stated that Ext.P6 order is illegal and is therefore
liable to be set aside in exercise of the powers of this Hon’ble Court under Article
227 of the Constitution of India on the following among other:
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GROUNDS

A. Ext.P6 order passed by the court below is illegal and therefore unsustainable
in law and is therefore liable to be set aside.

B. Ext.P6 is also the result of jurisdictional error committed by the court below
also and for this reason also, Ext.P6 order is liable to be set aside.

C. The learned Court below went wrong in not properly appreciating and
analyzing the scope of Order III Rule 2 of the Code of Civil Procedure while
passing Ext.P6 order

D. The very scope of the provision under CPC permitting a party to the litigation
to give evidence through his authorized agent/representative, is mis
interpreted and mis appreciated by the court below which has resulted in mis-
carriage of justice warranting interference by this Hon’ble Court under the
supervisory jurisdiction.

E. The court below also has gone wrong in stating that no averment is there in
the affidavit that the power of attorney holder has got personal knowledge of
the matter in dispute. There is specific statement in the affidavit filed in
support of I.A.No.2 of 2024 that the attorney is conversant with the facts of the
case. Therefore the reference in Ext.P6 order is due to the non-reading/mis-
reading of materials on record.

F. Even otherwise, whether the power of attorney holder has got personal
knowledge of the dispute may not be relevant while granting permission to the
litigant to give evidence through the power of attorney holder. The only
limitation is that if the power of attorney holder has no personal knowledge
about the matters which he speaks in court, the evidence given by the power
of attorney holder is to be appreciated on the basis of the above and on the
basis of the established precedents covering the situation. The request made
by a party litigant to permit him/her to give evidence through power of attorney
holder cannot be rejected at the threshold just like what is done as per Ext.P6.
For this reason also Ext.P6 is liable to be set aside.
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G. The petitioner has stated on affidavit that she is not able to be present in court
personally on account of health problems and it is therefore that she appoints
an agent who is conversant with the facts of the case to conduct the case and
to give evidence. There is no contra materials on record controverting these
averments. Therefore the approach made by the Court below and the
findings arrived at by the court below on the above basis also is not legally
sustainable.

H. The observation of the court below in Ext.P6 that a power of attorney holder
cannot be permitted to be given evidence on behalf of the principal in respect
of matters within the personal knowledge of the petitioner also is not legally
correct.

I. The further finding that if permission is granted under the above

circumstances to the power of attorney holder, it will be seriously prejudice the
defendants’ right of cross examination is also absolutely unsustainable in law.
No prejudice will be caused to the defendants. If the defendants are able to
demonstrate that the power of attorney holder has no direct knowledge of the
facts which he/she has deposed, the evidence of such a witness can be
refused to be accepted for determining the issues in controversy in the suit.
No other consequences will follow.

J. In spite of the fact that no objection is filed by of the respondents and in spite
of the fact that they did not seriously argue the matter also, the Court below
illegally dismissed the petition. For this reason also Ext.P6 is liable to be set
aside.

K. The entire approach made by the court below and the entire findings arrived
at by the court below in the non-speaking and criptic order also are illegal and
unsustainable in law.

L. The court below ought to allowed Ext.P5 petition and ought to have permitted
the petitioner’s power attorney holder to appear, plead and conduct the case.

For these and such other reasons to be submitted at the time of hearing, it is
humbly prayed that this Hon’ble Court may be pleased to allow this original petition
and set aside Ext.P6 order dated 11.09.2024 in I.A.No.2 of 2024 in O.S.99 of 2021
 8

on the file of the Civil Judge (Junior Division) Idukki which is impugned in this
Original petition and also allow Ext.P5 application with cost of the petitioner.

INTERIM PRAYER

For the reasons stated in the original petition and in the affidavit
accompanying thereto, it is humbly prayed that this Hon’ble Court may be pleased to
stay all further proceedings in O.S.No. 99 of 2021 now pending before Civil Judge
(Junior Division) Idukki during the pendency of the above Original Petition before this
Hon’ble Court.

Dated this the 11th day of November 2024

PETITIONER

COUNSEL FOR THE PETITIONER

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BEFORE THE HONOURABLE HIGH COURT OF KERALA, ERNAKULAM

O.P(C) No. of 2024
Shyni : Petitioner/Plaintiff.
Vs.

Shylaja & 4 others : Respondents/Defendants.

AFFIDAVIT

I, Shyni, W/o.Sasi (Mistakenly stated as W/o.Saji in the cause title of the

order) Kattuvettath House, Thopramkudy Kara, Vathikudy Village,Idukki Taluk, PIN -
685 604 having come over to Ernakulam do hereby solemnly affirm on oath and
state as follows

1. I am the petitioner in the above original petition. I am competent to

swear this affidavit and I am conversant with the facts sworn hereunder.

2. All that I have stated in the original petition are true and correct to the
best of my knowledge, belief and information. The legal contentions raised therein,
as advised, are tenable also. It is stated that I have not filed any other petition before
this Hon’ble Court for the reliefs which I am praying for in this Original Petition. It is
stated that Exts.P1 to P6 are copies of the originals also.

3. After passing Ext.P6 order, the court below has listed the case for trial
in spite of my inability to personally appear before the Court. If ultimately the above
original petition is allowed and in the meanwhile if the trial is started to my detriment,
I will be irreparably prejudiced. Therefore, I am seeking for stay of further
proceedings in the suit O.S.No.99 of 2021 on the file of Civil Judge (Junior Division)
Idukki during the pendency of the above original petition before this Hon’ble Court.
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4. All that stated above are true to the best of my knowledge, belief and
information.

Dated this the 11th day of November 2024

DEPONENT

Solemnly affirmed and signed before me by the Deponent who is personally known
to me, in my Office at Ernakulam on this the 11th day of November 2024
ADVOCATE