IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 17TH JULY 2009 / 26TH ASHADHA 1931 WP(C).No. 16890 of 2009(O) -------------------------------------- OS.1512/2007 of II ADDL.M.C.,THRISSUR ............................... PETITIONER(S): --------------------- 1. THRISSUR CORPORATION REP. BY ITS SECRETARY, THRISSUR CORPORATION, TSR-1. 2. THE TOWN PLANNING OFFICER, THRISSUR CORPORATION, THRISSUR-1. BY ADVS. SRI.K.B.MOHANDAS SRI.LELLULAL T.G.THUNDATHIL RESPONDENT(S): ------------------------ 1. P.V. VINOD, AGED 48 YEARS, S/O. VELAPPAN, PANIKKAPARAMBIL HOUSE, ARANATTUKARA VILLAGE, THRISSUR TALUK. 2. STATE OF KERALA, REP. BY DISTRICT COLLECTOR, THRISSUR. GOVERNMENT PLEADER FOR R2. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 16890 of 2009(O) A P P E N D I X EXHIBITS FOR THE PETITIONER :- EXT.P1 : COPY OF THE PLAINT IN O.S.1512/07 OF THE MUNSIFF COURT, THRISSUR DATED 3.6.07. EXT.P2 : COPY OF THE WRITTEN STATEMENT FILED BY THE 1ST DEFENDANT IN MUNSIFF COURT, THRISSUR IN O.S.1512/07, DATED NIL. EXT.P3 : COPY OF THE AFFIDAVIT I.A.6186/07 IN O.S.1512/07 OF THE MUNSIFF COURT, THRISSUR, DATED 2.7.07. EXT.P4 : COPY OF THE ORDER DATED 30.1.09 IN I.A.6186/07 IN O.S.1512/07 OF THE MUNSIFF COURT, THRISSUR, DATED 30.1.09. EXT.P5 : COPY OF THE PETITION AND AFFIDAVIT IN I.A.3314/08 IN O.S.1512/07 OF THE MUNSIFF COURT, THRISSUR, DATED 31.3.08. EXT.P6 : COPY OF THE COUNTER DATED 10.8.08 EXT.P5 FILED BY THE 1ST RESPONDENT. EXHIBITS FOR THE RESPONDENTS : NIL. //TRUE COPY// P.A.TO JUDGE ami S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.16890 OF 2009 (O) ----------------------------------- Dated this the 17th day of July, 2009 J U D G M E N T The writ petition is filed by a local authority, Corporation of Thrissur, which is sued as a defendant in a suit filed by the respondents seeking a decree of perpetual prohibitory injunction so as to restrain the authority from taking any action from evicting the respondents forcefully and unlawfully from a bunk scheduled in the plaint and also removing of that bunk. Petitioner/defendant on appearance before the court below filed written statement disputing the allegations in the plaint contending that the suit itself is not maintainable and the respondent is not entitled to the relief sought for. Respondent/plaintiff thereupon moved an application for production of the file relating to the details of license issued to the bunk maintained by the defendant. That being not produced within the time but only a location sketch alone was tendered, the learned Munsiff passed an order to strike of the pleadings of the defendant. Ext.P4 is the copy of that order. Correctness and propriety of Ext.P4 order is impeached in this writ petition invoking the supervisory jurisdiction vested with WPC.16890/09 2 this Court under Article 227 of the Constitution of India. 2. Notice was served on the counsel appearing for the respondent before the court below since the earlier notice sent through the court was returned 'unserved'; the respondent has not entered appearance after such service. 3. I heard the learned counsel for the petitioner. Having regard to the submissions made and also the facts and circumstances presented, I find Ext.P4 order passed by the learned Munsiff cannot be sustained for more than one reason. Where a party fails to produce the documents despite an order of the court, the court cannot straight away strike out the pleadings of the party without giving him an opportunity to explain reasons, if any, for nonproduction. Further more, striking out pleadings of a party should not be resorted to unless the court is satisfied there has been obstinacy or contumacy on the part of the party for wilfully discarding of the order of the court. The defendant is a local authority and it may have justifiable reasons for nonproduction of the file which was sought to be summoned by the respondent/plaintiff. Without having any enquiry as to whether the defendant has WPC.16890/09 3 justifiable cause for nonproduction and not providing it any opportunity, it is seen by Ext.P4 order, the pleadings of that local authority was struck of. The order is patently erroneous and unsustainable in law and against the mandate covered under Order XI Rule 21 of CPC. Unless it is established that there is wilful failure of the order of the court in the nonproduction of the documents, at the most, only adverse interference alone need be taken if at all there was default in production of a documents summoned by the court at the instance of the opposite party. Ext.P4 order is set aside and the learned Munsiff is directed to provide the defendant an opportunity to explain the cause, if any, for the nonproduction if at all it is satisfied that a further enquiry in the matter is required. Writ petition is disposed with the above observations. S.S.SATHEESACHANDRAN JUDGE prp