IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 6287 of 2007(W)
1. JIBU MATHEW, VADAYIL HOUSE,
... Petitioner
Vs
1. ST.MICHAELS CHURCH,
... Respondent
For Petitioner :SRI.GEORGE CHERIAN (THIRUVALLA)
For Respondent :SRI.JOHN JOSEPH VETTIKAD
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :05/09/2007
O R D E R
M.N.KRISHNAN,J
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W.P.(C).No.6287 of 2007
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Dated this the 5th day of September, 2007
JUDGMENT
This writ petition is preferred against the order of the
Additional Munsiff, Alappuzha in O.S.No.252/2004. The present
writ petition is against the refusal of the court to summon the
document and also the witnesses. This Court as per its judgment
in W.P.(C).No.20613/2006 directed the court below to consider
whether those documents are to be produced and witnesses to
the summoned. The learned Munsiff by the detailed order found
it as relevant and therefore declined the prayer. I have heard
the counsel for both sides. The suit is one for mandatory
injunction and prohibitory injunction. The plaint schedule
property is having an extend of 23 cents of land and permission
was granted to construct a building in the plaint schedule
property by virtue of a decision in 1896 of 1.10.1928. Now the
whole point revolves upon the question whether the permission
granted is a revocable licence or irrevocable licence. The five
documents sought to be summoned are (i) St. Thomas Law (ii)
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Thirusabha charitham (iii) Golden Jubilee Smaranika
(iv) Thirukarmmangalkkulla vadi sadhanam (v) Bible. As far as
the Bible is concerned it is available with all and so nobody not
to be directed to produce a copy of the Holy instrument. The
learned Munsiff found that the other documents are irrelevant
for the purpose of determination of the controversies between
the parties. The learned counsel for the writ petitioner submits
that such a finding even without seeing the documents is wholly
unsustainable and therefore the learned Munsiff should have
directed those documents to be produced and consider whether
they are relevant and then proceeded with the matter This court
is also not in a position to say what are the contents of those
books without seeing it. The learned counsel for the petitioner
submits that he wants to rely on those books to establish the
factum of the incompetency of the person to revoke the licence
and also to establish regarding the irrevocable nature of the
licence. I feel when such a contention is raised and when such a
contention goes to the root of the dispute between the parties, it
is not correct to shut out evidence and stating that they are
W.P.(C).No.6287 of 2007
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irrelevant even without seeing these documents. The learned
counsel for the respondent had brought to my notice the decision
of this Court reported in Rugmani v. Addl. Sub Judge (1997
(1) KLT 729) where this Court had when the jurisdiction is to
be exercised under Article 227 of the Constitution of India. It is
laid down therein that only in case of grave dereliction and
violation of law these articles will be exercised that too
sparingly. I may like to point out that if the document sought to
be summoned are really relevant for a proper determination of
the controversy between the parties and if such documents are
refused to be summoned by the court below it amounts to
dereliction of the the duty cast on the court and in such
circumstances the powers under Article 227 has to be exercised.
Therefore, I find that this writ petition is maintainable. But at
the same time it is also to be said that the intention of the
defendant should not be to make a parade of high dignitaries of
the Church before the court. It is not a welcomed practice at all.
Therefore, in order to properly find out the crux of the the
matter I direct the court below to summon the four documents
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shown in the earlier paragraph of the judgment and it can be
produced by an agent or anybody and thereafter, after hearing
the learned counsel for the 3rd defendant and the plaintiffs
counsel the court may find out whether it has to be marked or
further evidence has to be let in to substantiate those contention.
It is only after the court gets convinced that the evidence of
witnesses are necessary the court need summon them or
examine them through commission so as to avoid embarrassment
to them. With these observations the writ petition is disposed of.
Needless to say that the expenses for summoning the documents
have to be met by the party who wants to produce the same
before the court.
M.N.KRISHNAN,JUDGE
dvs