IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 30995 of 2008(M)
1. CHOKKAPPARAMBIL NARAYANANKUTTY NAIR,
... Petitioner
2. EDAKKALATHIL ASOKAN, S/O.VASU PARATHERI
3. KARAKKUNNUMMAL JANARDANAN, NELLIKKODE
4. MUTHUVADATHU GEETHA, D/O.RAGHAVAN NAIR,
5. KRISHNAPOYIL BHASKARAN, S/O.MUTHARAN,
6. CHERIYAMVEETTIL MOHAN, S/O.SUKUMARAN,
7. VIRUPPIL BALAKRISHNAN, S/O.GOVINDAN NAIR
8. BHANUMATHI, D/O.SAMIKUTTY, CHEVAYOOR
9. SATHYAVATHI, D/O.P.K.SAMIKUTTY,
10. SURESHKUMAR, S/O.P.K.SAMIKUTTY,
11. SUDHEERA, D/O.P.K.SAMIKKUTTY,
Vs
1. STATE OF KERALA & ANOTHER
... Respondent
For Petitioner :SRI.A.BALAGOPALAN
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :21/10/2008
O R D E R
THOMAS P. JOSEPH, J
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W.P.(C) No. 30995 OF 2008
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Dated this the 21st day of October, 2008
JUDGMENT
Government Pleader takes notice for respondents 1 and 2.
Heard both sides.
2. The petitioners are plaintiffs in O.S. No. 24/1996 of Addl.
Munsiff’s Court II, Kozhikode. That suit is for decree for permanent
prohibitory injunction to restrain the respondents from demolishing
the plaint schedule building. Petitioners filed I.A. No. 2821/2006
for issue of Commission which learned Munsiff dismissed. Against
that order, petitioners filed W.P.(C) No. 31938/2006. This Court
as per Ext. P1, judgment dated 19.6.08 directed both parties to
produce documents and thereafter, if the materials produced by the
parties are sufficient to arrive at a decision one way or other, the
court would be at liberty to proceed in accordance with law.
Observing so, that writ petition was closed. Petitioner filed Ext. P2,
application to direct respondents 1 and 2 to produce the relevant
documents. Learned Munsiff passed an order to produce the
documents. On 16.9.2008, the additional Govt. Pleader who
W.P.(C) No. 30995/2008
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appeared for respondents 1 and 2 stated that documents called for
as per Ext. P2 cannot be traced and that affidavit would be filed to
that effect. That affidavit was filed on 23.9.2008. Based on that,
Ext. P2 application was closed. This writ petition is directed against
that order.
3. Learned counsel for petitioners submitted that without the
documents called for as per Ext. P2, claim of the petitioners cannot
be established. It is also submitted by learned counsel that there is
no proper affidavit by respondents 1 and 2 and it is without taking
note of that, Ext. P2 application was closed.
4. It is stated in Ext. P3, affidavit sworn on behalf of
respondents 1 and 2 that the documents called for as per Ext. P2
cannot be traced out inspite of repeated efforts. Hence respondents
1 and 2 were not able to produce the said documents.
5. When respondents 1 and 2 stated as per affidavit that they
are not able to trace the documents, there is no question of
compelling them to produce the same.
6. It is then submitted by learned counsel that in case of non
production of documents, adverse inference has to be drawn
against respondents 1 and 2. That is a matter to be considered by
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the Trial Court at the appropriate stage. In case any application is
filed by petitioners for appointment of Commission, learned Munsiff
will consider that application in the light of the Ext. P1 order as well
and other facts and circumstances of the case and pass appropriate
orders. Trial of the suit will stand adjourned for a period of 15
days.
With the above observation, Writ Petition is closed.
THOMAS P. JOSEPH, JUDGE.
vkm