IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 9TH OCTOBER 2009 / 17TH ASWINA 1931 WP(C).No. 28521 of 2009(O) -------------------------- OS.297/2008 of MUNSIFF COURT, CHALAKUDY .................... PETITIONERS: ------------------- 1. JOHNY, S/O.DEVASSY, AGED 60, THEKKAN VEEDU, MELOOR DESOM, MELOOR VILLAGE, MUKUNDAPURAM TALUK. 2. JAMES, S/O.DEVASSY, AGED 55, THEKKAN VEEDU, MELOOR DESOM, MELOOR VILLAGE, MUKUNDAPURAM TALUK. 3. POLLY, S/O.DEVASSY, AGED 54, THEKKAN VEEDU, MELOOR DESOM, MELOOR VILLAGE, MUKUNDAPURAM TALUK. 4. PETER, S/O.DEVASSY, AGED 43, THEKKAN VEEDU, MELOOR DESOM, MELOOR VILLAGE, MUKUNDAPURAM TALUK. BY ADV. MR.G.SREEKUMAR (CHELUR) MR.K.RAVI (PARIYARATH) RESPONDENTS: --------------------- 1. SHAJI, S/O.DEVASSY, AGED 42, THEKKAN VEEDU, MELOOR DESOM, MELOOR VILLAGE, MUKUNDAPURAM TALUK. 2. T.N.FRANCIS, S/O. LONAPPAN, AGED 49, THEKKUMPURAM VEEDU, NELLAI DESOM, NELLAI VILLAGE, MUKUNDAPURAM TALUK THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.28521 of 2009 - O --------------------------------- Dated this the 9th day of October, 2009 J U D G M E N T Writ petition is filed seeking the following reliefs: “i) To call for the records leading to Ext.P6 and may be pleased to set aside the same. ii) To issue an appropriate writ, order or direction commanding the Munsiff Court, Chalakkudy, to allow Ext.P4 application in the interest of justice.” 2. Petitioners are the plaintiffs in O.S.No.297 of 2008 on the file of the Munsiff Court, Chalakkudy. Suit is one for perpetual prohibitory injunction, and the respondents are the defendants. Plaintiffs and the first defendant are brothers. Learned counsel for the petitioner submitted that the suit has been laid for the relief claimed in view of the apprehension entertained by the plaintiffs that in derogation of the rights of the plaintiffs, the first defendant, a coowner, would induct the second defendant in the plaint schedule room. First and second defendants filed written statement refuting the case canvassed by the plaintiffs. Suit has now been included in the special list for W.P.(C).No.28521 of 2009 - O 2 trial. Plaintiffs moved an application under Order XI Rule 12 for production of some documents by the first defendant. That application was objected to by that defendant. The court below dismissed the application of the plaintiffs vide Ext.P6 order. Propriety and correctness of Ext.P6 order is challenged in the writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 3. I heard the counsel for the petitioner. From the submissions made and the facts and circumstances presented, I find no notice to the respondents is necessary and it is dispensed with. 4. It is submitted that the plaintiffs have a case that original of an agreement, a photocopy of which in their possession had been produced in the suit is in the custody of the first defendant. They have a further case that the first defendant had executed a rent deed in favour of lessees recognizing the right of the plaintiffs as well. Production of the original agreement and rent deed purported to have been executed by the first defendant was sought for in their application. The first W.P.(C).No.28521 of 2009 - O 3 defendant filed objections to its production. The court below adverting to the contentions raised in the written statement of the first defendant disputing the existence of the original agreement and challenging the copy of the agreement produced by the plaintiffs as concocted and also the submissions made that the rent deed had been produced in rent control proceedings, negatived the request of the plaintiffs for discovery of the document. On the face of it, Ext.P6 order is found to be not proper and correct. The court is not expected to go into the merits of the application when a request made under Order XI Rule 12 to discover a document. Of course, the application can be dismissed provided the court is of opinion that the production of the document sought for is not necessary for fair disposal of the suit. If that be not so, the normal order to be passed is to produce the document or file affidavit. It is for the defendant to show by his affidavit as to why the documents could not be produced on whatever grounds thereof. The court has to draw adverse inference if the cause shown is not sufficient to justify the nonproduction of the document. That arises for consideration W.P.(C).No.28521 of 2009 - O 4 at a later stage at the trial of the suit. The only question that requires consideration by the court at this stage is whether the production of the document sought for is essential for a fair adjudication of the suit. 5. Having regard to the nature of the controversy arising in the suit, it appears, it cannot be stated that the request made by the plaintiffs for production of the document is irrelevant. Setting aside Ext.P6 order, I direct the court below to pass appropriate orders in accordance with law. Writ petition is disposed of as above. Hand over a copy of the judgment to the counsel for the petitioner and send a copy to the court concerned forthwith. S.S.SATHEESACHANDRAN, JUDGE. bkn/-