IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 3RD MARCH 2010 / 12TH PHALGUNA 1931 WP(C).No. 27246 of 2009(O) --------------------------------------- OS.268/2008 of PRL.MUNSIFF, KASARAGOD .................... PETITIONER(S): ---------------------- THOMAS ALIAS RAJU, AGED 40 YEARS,S/O.LATE ABRAHAM,CHRISTIAN, RESIDING AT MADATHADUKKA,KADAMANE NADIADKA VILLAGE,P.O.PALLATHADKA,KASARAGOD TALUK AND DISTRICT. BY SMT.SUMATHY DANDAPANI, SENIOR ADVOCATE MR.MILLU DANDAPANI SMT.ALTHEA EDWINA ROZARIO RESPONDENT(S): ----------------------- MERLIS JOSE, AGED 24 YEARS,D/O.JOSE SEBASTIAN,CHRISTIAN, RESIDING AT MECHEDATH HOUSE OF AMBALATHARA, VELLUR VILLAGE,KANDOTH POST OF PAYYANNUR, TALIPARAMBA TALUK,KANNUR DISTRICT. R1 BY ADV.MR.SUNNY MATHEW THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/03/2010 , THE COURT ON THE SAME DAYDELIVERED THE FOLLOWING: W.P.(C) NO.27246/2009 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE PLAINT IN OS. 268/08 ON THE FILE OF MUNSIFF COURT, KASARAGOD. P2:- COPY OF THE WRITTEN STATEMENT WITH A COUNTER CLAIM SUBMITTED BY THE PETITIONER TO OS. NO.268/08. P3:- COPY OF THE IA. NO.239/08 IN OS. 268/08 ON THE FILE OF THE MUNSIFF COURT, KASARAGOD. P4:- COPY OF THE APPLICATION, IA. 233/09 OF THE KERALA CIVIL RULES OF PRACTICE WITH ORDER IN IA. NO.233/09 IN OS. 268/08 PASSED BY THE LEARNED MUNSIFF, KASARAGOD. P5:- COPY OF THE PETITION DTD. 13.4.09 SUBMITTED BY THE PETITIONER BEFORE THE CIRCLE INSPECTOR, VIGILANCE DEPARTMENT, KASARAGOD. P6:- COPY OF THE PETITION DTD. 2.6.09 SUBMITTED BY THE PETITIONER BEFORE THE HONOURABLE MINISTER FOR REVENUE, THIRUVANANTHAPURAM. P7:- COPY OF THE ORDER DTD. 7.2.09 IN IA. 233/09 IN OS. 268/08 ON THE FILE OF MUNSIFF COURT, KASARAGOD. TRUE COPY P.S. TO JUDGE tss P. BHAVADASAN, J. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= W.P.(C) No. 27246 of 2009 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 3rd 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 that 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.