IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A. BADHARUDEEN MONDAY, THE 17^TH DAY OF JANUARY 2022 / 27TH POUSHA, 1943 OP(C) NO. 2451 OF 2021 AGAINST THE ORDER DATED 8.12.2021 IN IA 1/2021 IN OS

139/2019 OF PRINCIPAL MUNSIFF COURT, KOCHI PETITIONER/PETITIONER/DEFENDANT:

B.IQBAL, AGED 53 YEARS, S/O. BEERAN, RESIDING IN C.C.NO. 14/1290, MOOLAMKUZHI, NEAR CHEMMEN JUNCTION, RAMESWARAM VILLAGE, KOCHI TALUK.

BY ADVS.

M.NARENDRA KUMAR P.B.PRADEEP P.S SANDEEP KRISHNAN RESPONDENT/RESPONDENT/PLAINTIFF: CELINE SEBASTIAN, AGED 58 YEARS, W/O. SEBASTIAN, THERUVIL VEETTIL, CHULLIKKALDESAM, THOPPUMPADY VILLAGE, KOCHI TALUK, PIN - 682005.

BY ADVS.

SHIJU VARGHESE C.V.SAI RASMI C.RAKESH VENUGOPAL THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 17.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

A. BADHARUDEEN, J.

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Dated this the 17^th day of January, 2022

J U D G M E N T

Order dated 08.12.2021 in I.A.No.1 of 2021 in O.S.No.139 of 2019 on the file of the Principal Munsiff Court, Kochi is under challenge at the instance of Mr. B.Iqbal, who is the defendant in O.S.No.139/2019.

2. Heard both sides.

3. As per the impugned order, the learned Munsiff dismissed the application filed by the petitioner herein under Order 12 Rule 2 of CPC regarding admissibility of a mortgaged deed produced from the other side. The learned Munsiff after hearing both sides closed the application as under : "Hence in the result, the application is closed making it clear that the parties can challenge the insufficiency of stamp duty or question of non-registration or other challenges with respect to the document, at the time of marking of document, when it is attempted to be admitted in evidence."

4. According to the learned counsel for the petitioner, the so called mortgaged deed referred in Ext.P6 order is inadmissible in evidence for want of sufficient stamp.

5. Though such a contention was raised, the learned Munsiff not allowed the prayer, instead the petition was closed as above.

6. The crucial question is whether the mortgaged deed marked as Ext.A1 in Ext.P6 order is admissible in evidence or not. In fact, the learned Munsiff not decided the said issue. Going by the nature of the contentions raised, I am inclined to set aside Ext.P6 order with direction to the learned Munsiff to consider the admissiblity of Ext.P5 before start of trial and take an appropriate decision based on the law prevailing.

7. This Original Petition is allowed accordingly.

Decision in the above application I.A.No.1/2021 in O.S.No.139 of 2019shall be made afresh within 30 days from the date of receipt of a copy of this judgment or production by the concerned party.

(A. BADHARUDEEN, JUDGE)

Sd/- rtr/

APPENDIX OF OP(C) 2451/2021 PETITIONER'S EXHIBITS Exhibit P1 TRUE COPY OF THE PLAINT IN O.S.NO.139/2019 ON THE FILE OF MUNSIFF'S COURT, KOCHI FILED BY THE PETITIONER DT.3.4.2019.

Exhibit P2 TRUE COPY OF THE PLAINT IN OS NO.

230/2019 ON THE FILE OF MUNSIFF'S COURT, KOCHI FILED BY THE RESPONDENT DT.6.6.2019.

Exhibit P3 TRUE COPY OF THE WRITTEN STATEMENT IN OS NO. 139/2019 DATED 29.11.2020.

Exhibit P4 TRUE COPY OF THE WRITTEN STATEMENT IN OS NO. 230/2019 DATED 10.10.2019.

Exhibit P5 TRUE COPY OF THE DOCUMENT PERTAINING TO LEASE ARRANGEMENT DATED 05.04.2018.

Exhibit P6 TRUE COPY OF THE ORDER IN I.A.NO.1/2021 IN O.S.NO.139/2019 DATED 8.12.2021.