IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 21ST OCTOBER 2008 / 29TH ASWINA 1930 WP(C).No. 30995 of 2008(M) -------------------------- OS.24/1996 of ADDL.M.C.,KOZHIKODE-II .................... PETITIONER(S): --------------- 1. CHEKKAPPARAMBIL NARAYANANKUTTY NAIR, S/O.KANDARU NAIR, NELLIKKODU AMSOM DESOM, KOZHIKODE TALUK. 2. EDAKKALATHIL ASOKAN, S/O.VASU PARATHERI AMSOM DESOM, KOZHIKODE TALUK. 3. KARAKKUNNUMMAL JANARDANAN, NELLIKKODE AMSOM DESOM, KOZHIKODE TALUK. 4. MUTHUVADATHU GEETHA, D/O.RAGHAVAN NAIR, CHOWAYOOR AMSOM DESOM, KOZHIKODE TALUK. 5. KRISHNAPOYIL BHASKARAN, S/O.MUTHARAN, NELLIKKODE AMSOM DESOM, KOZHIKODE TALUK,(DIED). 6. CHERIYAMVEETTIL MOHAN, S/O.SUKUMARAN, NELLIKKODE AMSOM DESOM, KOZHIKODE TALUK. 7. VIRUPPIL BALAKRISHNAN, S/O.GOVINDAN NAIR CHEVAYOOR AMSOM DESOM, KOZHIKODE TALUK. 8. BHANUMATHI, D/O.SAMIKUTTY, CHEVAYOOR AMSOM DESOM, KOZHIKODE TALUK. 9. SATHYAVATHI, D/O.P.K.SAMIKUTTY, CHEVEYOOR AMSOM DESOM, KOZHIKODE TALUK. 10. SURESHKUMAR, S/O.P.K.SAMIKUTTY, CHEVAYOOR AMSOM DESOM, KOZHIKODE TALUK. 11. SUDHEERA, D/O.P.K.SAMIKKUTTY, CHEVAYOOR AMSOM DESOM, KOZHIKODE TALUK. BY ADVS. SRI.A.BALAGOPALAN SMT.T.LAKSHMI SRI.K.SANEESH KUMAR SRI.BASIL MATHEW RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR, KOZHIKODE. 2. THE REVENUE DIVISIONAL OFFICER, KOZHIKODE. BY GOVT. PLEADER ADV. SMT. PUSHPALATHA THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J ---------------------------------- W.P.(C) No. 30995 OF 2008 ----------------------------------- 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 2 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 W.P.(C) No. 30995/2008 3 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