IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN WEDNESDAY, THE 3RD DECEMBER 2008 / 12TH AGRAHAYANA 1930 WP(C).No. 35715 of 2008(B) -------------------------------------------- IA.8786/2008 of PRL.M.C.,TRIVANDRUM .................... PETITIONER: JANAMMA, AGED 90 YEARS, D/O. KALI CHAKKI MANGODE VEEDU, IRUMBA, ARUVIKKARA, THIRUVANANTHAPURAM, FROM POTTAKUZHI VEEDU, PATTAM, THIRUVANANTHAPURAM. BY ADV. SRI.D.SAJEEV RESPONDENTS: 1. G.RAJAPPAN,T.C. 8/101, TRA 34 (A), THITTAMANGALAM, VATTIYOORKAVU P.O., NOW RESIDING AT SIVALAYA, NO.9, LEITH CASTLE ROAD, SANTHACRUSE, CHENNAI. 2. HARIHARAN T. T.C. 2/209, RAJ BHAVAN, POTTAKKUZHI, PATTAM, THIRUVANANTHAPURAM. 3. RAMACHANDRAN, TC 2/209, RAJ BHAVAN, PTTAKKUZHI, PATTAM, THIRUVANANTHAPURAM. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. -------------------------- W.P.(C)No.35715 of 2008 B -------------------------- JUDGMENT Petitioner is a prospective plaintiff, who wanted to institute a suit for partition before the Munsiff's Court, Thiruvananthapuram. The first respondent and the petitioner are stated to be the children of Kali Chakki of Pottakuzhi Veedu, Pattom, Thiruvananthapuram and respondents 2 and 3 are stated to be the children of Bhargavi, the deceased sister of the petitioner and the first respondent. 2. It is submitted by the counsel for the petitioner that properties were obtained by the mother of the petitioner and the first respondent and the maternal grandmother of respondents 2 and 3 under Partition Deed No.48 of 1102 M.E.; that for the purpose of institution of the suit, she applied for a copy of the said partition deed, but she received Exhibit P2 reply from the Sub Registrar's WPC 35715/08 2 Office to the effect that the register containing the said document has got deteriorated on account of aging and therefore, they are unable to issue copy of the said document; that therefore, the suit was filed obtaining a photostat copy of an attested copy of the document which had been produced by members of some other sakha in O.S.No.1023/04, instituted before the Munsiff's court, Thiruvananthapuram claiming right over an item of property involved in the said partition deed, but that the plaint has been returned vide Exhibit P4 order passed on I.A.No. 8786/08 for the reason that an authentic copy of Partition Deed No.48 of 1102 M.E. is not produced and that therefore, appropriate direction be issued in the matter quashing Exhibit P4 order and to redress the grievance of the petitioner. 3. The order passed on Exhibit P4 order by the learned Munsiff is extracted below: WPC 35715/08 3 “Suit document is the settlement deed. Hence not allowed. Produce an admissible copy of the document.” 4. What is intended by the above order is not discernible, though the counsel submits that it is an order refusing to receive the plaint, except with an authentic copy of the title document, which is Partition Deed No.48 of 1102 M.E. The submission of the counsel appears to be true on seeing the prayer in Exhibit P3. If Exhibit P4 is an order passed on Exhibit P3, it cannot be sustained in the circumstances of the case. The suit is one for partition. Petitioner/plaintiff claims title thereto under Partition Deed No.48 of 1102 M.E. of Sub Registry Office, Chirayinkeezh. Petitioner has also stated in the affidavit accompanying Exhibit P3 that an authentic copy of the partition deed has been produced by some others in the tharavad in O.S.No.1023/04 of the same court. WPC 35715/08 4 5. In the circumstances, I set aside Exhibit P4 order passed by the court below on Exhibit P3 and direct the petitioner to re-present the plaint along with a petition to call for the authentic copy of the document from O.S.No.1023/04 and to return the document back to the concerned case after comparing with the photostat copy that is produced, causing it to be certified by the examiner to be true copy, so that in the course of trial of the suit, petitioner will get an opportunity to produce, if need be, an authentic copy of Partition Deed No.48 of 1002 M.E. This writ petition is disposed of with the above directions. 3rd December, 2008 (K.P.Balachandran, Judge) tkv