IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 9TH JUNE 2010 / 19TH JYAISTHA 1932 WP(C).No. 35685 of 2009(O) -------------------------- IA NO.1443/2007 IN OS.27/2005 of SUB COURT, TIRUR .................... PETITIONER(S): --------------- ST.MARY'S CHURCH, TIRUR, REPRESENTED BY ITS VICAR FR.SEBASTIAN PANAMATOM. BY ADV. SRI.TOM K.THOMAS RESPONDENT(S): --------------- 1. SHAJI M.JOSEPH, AGED 43, S/O.JOSEPH, MANNANANICKAL, B.P.ANGADI P.O., TIRUR. 2. SUNNY T.IYPE, AGED 53, S/O.IYPE, THEKKEL HOUSE, B.P.ANGADI P.O., TIRUR. 3. K.S.JOY, AGED 45, KODIANKUNNEL, B.P.ANGADI P.O., TIRUR. 4. G.THOMAS, AGED 54, S/O.GYNAMUTHAN, STAR HOUSE, PACHATTIRI, TIRUR P.O ADV. SRI.GEORGE CHERIAN (THIRUVALLA) FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.35685/2009 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF OS 27/2005 ON THE FILE OF THE SUB COURT, TIRUR EXT.P2 TRUE COPY OF APPLICATION EXT.P3 TRUE COPY OF APPLICATION EXT.P4 TRUE COPY OF THE COUNTER AFFIDAVIT EXT.P5 TRUE COPY OF ORDER IN IA 143.2007 THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.35685 of 2009 -------------------------------------- Dated this the 9th day of June, 2010. JUDGMENT Respondent filed O.S.No.27 of 2005 in the court of learned Sub Judge, Tirur purported to be one under Section 92(1) of the Code of Civil Procedure (for short, “the Code”). Learned Sub Judge granted leave subject to hearing the petitioners. Petitioners made their appearance in the suit and contested application for leave under Section 92 of the Code maintaining that the suit does not come within the purview of the said provision. They filed application for revocation of leave provisionally granted by learned Sub Judge. While that application was pending respondent moved an application, I.A.No.1443 of 2007 to summon certain documents from the possession of petitioners. Learned Sub Judge as per order dated 29.10.2009 directed petitioners to produce the said documents or file affidavit why it could not be produced. That order is under challenge in this Writ Petition. Learned counsel contend that without considering the application for revocation of the leave it is not just and proper to grant any interlocutory order, be it directing petitioners to produce documents. Learned counsel for respondent contends that documents called for vide order on I.A.No.1443 of 2007 are necessary for disposal of application for the revocation of leave filed by the petitioners. 2. From the impugned order I am not able to find whether the WP(C) No.35685/2009 2 documents summoned are necessary for disposal of the issue regarding grant of leave under Section 92(1) of the Code. If the documents are necessary for the said purpose there is no reason why the request to summon the documents be refused as that is a matter connected with the leave under Section 92(1) of the Code. If the grant of leave under Section 92(1) of the Code is disputed necessarily the leaned Sub Judge has to decide that issue before proceeding with the trial of suit. Therefore it is necessary to consider whether documents called for are necessary for disposal of the issue regarding grant of leave under Section 92(1) of the Code and its revocation as prayed for by the petitioner. Since that aspect is not revealed from the order under challenge I am constrained to set aside the impugned order but leaving it open to learned Sub Judge to reconsider the application afresh and pass appropriate orders. Resultantly this Writ Petition is allowed. Order dated 29.10.2009 on I.A.No.1443 of 2007 is set aside and that application is remitted to the learned Sub Judge for fresh consideration and to pass appropriate order in the light of the observations I have made above. THOMAS P.JOSEPH, Judge. cks