IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 4TH FEBRUARY 2008 / 15TH MAGHA 1929 WP(C).No. 4080 of 2008(I) ------------------------- IA 3215/07 IN OS.400/2007 of ADDL.MUNSIFF COURT, KANNUR .................... PETITIONER: ------------ 1. CHIKKOLI SUNIL KUMAR S/O.SUKUMARAN, SALESMAN,SUGUNAN SUNILKUMAR NIVAS THANA P.O., KANNUR 670012. 2. CHIKKOLI SUGUNAN,S/O. SUKUMARAN RESIDING AT DO...DO... BY ADV. SRI.V.RAJAGOPAL RESPONDENTS: ------------- 1. CHERUVALAPPIL SUMITHRAN S/O.SUKUMARAN PULLANHI HOUSE,VATTAKULAM, EDAKKAD AMSOM,THOTTADA. 2. CHIKKOLI SUMANGALI, D/O. SUKUMARAN RESIDING AT PRAJITHALAYAM, CHATHURAKKINAR, VALIYANNUR. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. -------------------------- W.P.(C). NO. 4080 OF 2008 --------------------- Dated this the 4thday of February, 2008 JUDGMENT This writ petition is preferred against the order of the Munsiff, Kannur, in IA 3215/07 in OS 400/07. It was an application filed by defendants 1 and 2 in the suit to issue summons to the Sub Registrar, Kannur, for producing Book No.III Volume 97 Page No.99 & 100 which includes Will No.12/1999, before that court. The court below passed an order that since it is stated that the Will has only misplaced, it can be traced out and therefore dismissed the application. 2. At the outset, it has to be stated that in cases which involves a Will, as far as possible primary evidence is to be insisted upon i.e., production of the original itself. But there may be cases where the original is lost and the original could not be produced. There the secondary evidence comes into play and it is only at that stage the consideration of this material comes before the court. As observed by the learned Munsiff, what is stated in the petition is only a misplacement of the Will. Therefore, it is for the party, who is in WPC NO 4080/08 2 possession and who has applied to make a thorough search for the Will and if not available to submit before the court the necessity or admissibility of secondary evidence. However, the court below has also to look into the category of document which cannot be summoned from the Sub Registrar's Office. So when an appropriate application is filed by the petitioners with the necessary details available for production of the document, which is permitted by law, the court is bound to consider the same. With that liberty, this writ petition is disposed of. M.N.KRISHNAN, JUDGE vps WPC NO 4080/08 3