IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 27246 of 2009(O)
1. THOMAS ALIAS RAJU,
... Petitioner
Vs
1. MERLIS JOSE,
... Respondent
For Petitioner :SMT.SUMATHY DANDAPANI (SR.)
For Respondent :SRI.SUNNY MATHEW
The Hon'ble MR. Justice P.BHAVADASAN
Dated :03/03/2010
O R D E R
P. BHAVADASAN, J.
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W.P.(C) No. 27246 of 2009
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Dated this the 5th day of March, 2010
JUDGMENT
In this writ petition filed under Article 227 of the
Constitution of India the petitioner seeks the following
reliefs:-
i) to call for the records leading to the case and
peruse Exhibit P4 and to issue a writ of
certiorari closing the IA 233/09 in O.S.
No.268/08 on the file of the Principal
Munsiff, Kasaragod;
ii) to issue a writ of mandamus or any other
appropriate writ, order or direction,
directing the learned Munsiff, Kasaragod to
call for the remaining missing pages in
respect of SS No.848/63/Perdala in respect
of properties in RS No.1063/1B and 1065/2
of Pardala Village (now Badiadka Village);
iii) to issue a writ of mandamus, or any other
appropriate writ, order or direction,
directing the learned Munsiff, Kasaragod to
admit in evidence the sketches available with
the petitioner in respect of the properties in
RS No.1063/1B and 1065/2 of Perdala
Village (now Badiadka Village), if the District
Collector, Kasaragod and Tahsildar,
Kasaragod fail to produce the remaining
missing of SS No.848/63;
W.P.(C) No. 27246/09 2
iv) to issue such other appropriate writ, order or
direction which this Honouable Court may
deem fit in the circumstances of the case and
v) to award costs of these proceedings.
2. The respondent in this writ petition filed O.S.
No.268 of 2008 before the Munsiff’s Court, Kasaragod
against the petitioner for realization of damages of
Rs.22,800/- and also for a permanent prohibitory injunction
restraining the petitioner from trespassing into the plaint ‘A’
schedule properties. The respondent in the suit claimed
that plaint ‘A’ schedule property is in her possession and
enjoyment. The allegation was that the petitioner herein
trespassed into the plaint schedule property and cut and
removed the trees.
3. The petitioner herein filed written statement with a
counter claim. He pointed out that the plaint schedule
property belongs to him and the allegations made against
him are not correct. He stated that the property belongs to
one M.Sankara Moolya who obtained the same on
assignment under settlement scheme S.S.No.848/63 dated
29-2-1964. He also stated that the petitioner removed a
W.P.(C) No. 27246/09 3
portion of the trench after obtaining an ex parte order of
injunction in the suit.
4. It appears that the petitioner filed I.A. No.No.2039
of 2008 under Rule 120 of the Kerala Civil Rules of Practice,
seeking to issue summons to the District Collector,
Kasaragod to direct the Tahsildar, Kasaragod to produce
the entire files relating to S.S.No.848/63/Perdala in respect
of the assignment proceedings relating to the properties
comprised in R.S. No.1063/1B and 1065/2, measuring 2.90
acres and 1.10 acres respectively situated in Perdala Village
(now Badiadka Village). According to the petitioner,
documents were in the custody of the Tahsildar, Kasaragod.
The application was allowed and direction sought for was
issued to produce the file. The file was produced before the
court. It is found that relevant pages are missing from the
file. Then the Tahsildar was called upon to produce the
missing pages also. He filed an affidavit stating that he
could not trace out the remaining pages. In the light of the
affidavit filed by the Tahsildar, the learned Munsiff closed
the application. That order is under challenge.
W.P.(C) No. 27246/09 4
5. This Court called for a report from the lower court.
The lower court reported that the Tahsildar who appeared
in person before the court initially sought for time to
produce the documents. The case was posted on two
occasions and thereafter the Tahsildar filed an affidavit
stating that documents are missing. Nothing more to be
done in the matter and I.A. was closed.
6. The learned counsel for the petitioner pointed out
that the petitioner is having photocopies of the document.
He is now unable to get the original of the documents.
7. The petitioner has a remedy to produce secondary
evidence, if it is established primary evidence could not be
procured in spite of best effort in that case. The court
below shall consider the documents produced by the
petitioner in support of his case. With liberty to do so, this
petition is dismissed.
P.BHAVADASAN, JUDGE.
mn.
