IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 23RD MARCH 2009 / 2ND CHAITHRA 1931 WP(C).No. 8150 of 2009(O) OS.3211/2006 OF PRINCIPAL MUNSIFF COURT,THRISSUR PETITIONERS: --------------- 1. P.L.RAFI, S/O.LONAPPAN, AGED 47 YEARS, KURIACHERA, THRISSUR. 2. C.A.RAFI, S/O.ANTHONY, AGED 46 YEARS, PADINAREANGADI, OLLUR, THRISSUR. BY ADV. SRI.DINESH MATHEW J.MURICKEN SRI.P.V.BALAKRISHNAN RESPONDENT: --------------- ANNIE JOSE, W/O.JOSE, CHITTILAPPALLY, CHITTILAPPALLY HOUSE, MUNDUPALAM, THRISSUR. R1 BY ADV. SRI.JIJO PAUL THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ W.P.(C) NO. 8150 OF 2009 O ------------------------------------------------------ Dated this the 23rd March, 2009 JUDGMENT The petitioners are the defendants in O.S.No.3211 of 2006, on the file of the Court of the Principal Munsiff of Thrissur. The suit was filed for an injunction restraining the defendants from using the southern verandah of plaint A schedule property and for other reliefs. The contention of the defendants is that they are entitled to use the southern verandah of plaint A schedule property as well as the parking area. The defendants claimed title to a shop room as per registered document No.5812/01 of Sub Registrar's Office, Thrissur. It is stated that the title deed is mortgaged by the defendants for the purpose of taking a loan from Catholic Syrian Bank, Thrissur Branch. According to the defendants, the title deed would disclose that they are entitled to rights over the disputed area. Since the original title deed was deposited with the Bank, the petitioners/defendants applied for a registration copy of the document. The registration copy was produced before the court below. But, the registration copy of the document does not show the boundaries of the property. Therefore, the petitioners/defendants filed I.A.No.1450 of 2009 to call for the original title deed from the Catholic Syrian Bank. The court below allowed I.A.No.1450 of 2009. The Bank produced the original title deed. The W.P.(C) NO.8150 OF 2009 :: 2 :: petitioners wanted copy of that title deed to be marked after returning the original to the Bank. They filed I.A.No.1826 of 2009 to re-open the evidence and I.A.No.1827 of 2009 to mark the attested photocopy of the title deed, which was duly attested and produced by the Bank Manager. The court below dismissed I.A.Nos.1826 of 2009 and 1827 of 2009 by Ext.P8 common order dated 3.3.2009. The court below held that the Bank is not competent to issue a certified copy of the document which was deposited with the Bank and that a copy issued by the Bank cannot be treated as secondary evidence. It was also held that Order XIII Rule 5 of the Code of Civil Procedure does not apply to the case on hand. Another reason for dismissing the applications was the delay in making the applications. It was held that the petitioners had enough opportunity to produce the registration copy of the document. The applications were dismissed with costs of Rs.500/-. 2. Learned counsel for the petitioners submitted that when the registration copy of the document was produced before Court, an application was filed to re-open the evidence and that application was allowed on payment of costs of Rs.750/-. The petitioners paid the costs. Now the applications are dismissed by Ext.P8 order imposing a costs of Rs.500/-. The counsel submitted that the registration copy obtained from the Registrar's Office should really contain the necessary details and the W.P.(C) NO.8150 OF 2009 :: 3 :: petitioners cannot be blamed for not getting a proper copy. It is also submitted by the learned counsel for the petitioners that in the filing sheets kept in the Sub Registrar's Office, the boundaries of the property are not shown and that is the reason why the registration copy issued by the Sub Registrar's Office does not contain the description of the boundaries. 3. The view taken by the court below that an attested copy issued by the Bank cannot be treated as secondary evidence is correct. So also, the view taken by the Court that Rule 5 of Order XIII of the Code of Civil Procedure is not applicable to the case, is also correct. But the absence of description of the boundaries in the registration copy issued by the Sub Registrar's Office is not due to the fault of the petitioners. The petitioners also took steps to summon the original title deed from the Bank and it was produced before Court. 4. Learned counsel for the petitioners submitted that the only way open to the petitioners is to get the original title deed produced by the Bank before Court, to get a certified copy of that document from the Court and produce it as evidence in the case. He also submitted that the Bank would not be agreeable for keeping the original title deed till the culmination of the proceedings in the Court. W.P.(C) NO.8150 OF 2009 :: 4 :: 5. In the facts and circumstances of the case, I am of the view that the original document should be summoned from the Catholic Syrian Bank. The court shall issue summons to the Bank to produce the original title deed. After getting the original title deed, the petitioners shall be permitted to get a certified copy of the document issued by the Court. The certified copy shall be produced in evidence by the petitioners. After issuing the certified copy, the original title deed shall be returned to the Bank. By adopting such a course, no prejudice would be caused to any of the parties. It is true that there is delay on the part of the petitioners in taking steps. I do not think that only for that reason, the evidence should be shut out. Normally, when a prayer like this is granted at the belated stage, the respondent should be compensated for the inconvenience caused to him. But, in the present case, I am not passing any order for costs since the court below had dismissed the applications with costs. For the aforesaid reasons, the Writ Petition is disposed of as follows: a) The court below shall direct the Catholic Syrian Bank, Thrissur Branch to produce the original title deed, namely, document No.5812/01, SRO, Thrissur before Court. W.P.(C) NO.8150 OF 2009 :: 5 :: b) After receiving the document, the court below shall mark the document as an Exhibit. c) The petitioners shall apply for a certified copy of that document immediately on production of the original document and marking the same. d) The court below shall issue certified copy emergently and after issuing the certified copy, the original shall be returned to the Bank after substituting the certified copy. (K.T.SANKARAN) Judge ahz/