IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 11TH OCTOBER 2010 / 19TH ASWINA 1932 OP(C).No. 126 of 2010(O) ------------------------ ORDERS ON IA NOS.7036/2010, 7037/2010 AND 7302/2010 IN OS.545/1998 of II ADDL.MUNSIFF COURT,THIRUVANANTHAPURAM .................... PETITIONER(S): -------------------- DAVID LIVINGSTON, S/O.LATE DAVID, AGED 80, NOW RESIDING AT PULLANNIVILA VEEDU, THUNDATHIL P.O., CHENKOTTUKONAM, THIRUVANANTHAPURAM. BY ADV. SRI.K.B.PRADEEP RESPONDENT(S): --------------- 1. N.DIVAKARAN, S/O.LATE NARAYANAN, RESIDING AT KARUMKALIL VEEDU, MANNANTHALA P.O., MANNANTHALA, THIRUVANANTHAPURAM. 2. CHANDRIKA KUMARI, W/O.DIVIKARAN, RESIDING AT KARUMKALIL VEEDU, MANNANTHALA P.O., MANNANTHALA, THIRUVANANTHAPURAM. THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 11/10/2010, ALONG WITH OP(C) NO.264/2010 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C) NO.126/2010 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF SAID PLAINT DATED 17.3.1998 IN OS 545/1998 ON THE FILE OF II ADDL.MUNSIFF COURT, THIRUVANANTHAPURAM EXT.P2 TRUE COPY OF WRITTEN STATEMENT DATED 1.1.2000 FILED BY THE PETITIONER IN O.S.545/1998 ON THE FILE OF II ADDL.MUNSIFF COURT, THIRUVANANTHAPURAM EXT.P3 TRUE COPY OF ADDITIONAL WRITTEN STATEMENT DATED 1.7.2008 FILED BY THE PETITIONER IN O.S.545/1998 ON THE FILE OF II ADDL.MUNSIFF COURT, THIRUVANANTHAPURAM EXT.P4 TRUE COPY OF APPLICATION DATED NIL FILED BY RESPONDENTS (IA NO.640/2010) IN O.S.545/1998 ON THE FILE OF II ADDL.MUNSIFF COURT, THIRUVANANTHAPURAM EXT.P5 TRUE COPY OF COUNTER AFFIDAVIT DATED 2.2.2010 FILED BY THE PETITIONER TO EXT.P4 APPLICATION EXT.P6 TRUE COPY OF THE APPLICATION (IA 7302/2010) DATED 2.9.2010 FILED BY THE PETITIONER IN O.S.545/1998 ON THE FILE OF II ADDL.MUNSIFF COURT, THIRUVANANTHAPURAM EXT.P7 TRUE COPY OF THE APPLICATION (IA 7036/2010) DATED 20.8.2010 FILED BY THE PETITIONER IN O.S.545/1998 ON THE FILE OF II ADDL.MUNSIFF COURT, THIRUVANANTHAPURAM EXT.P8 TRUE COPY OF THE APPLICATION (IA 7037/2010) DATED 20.8.2010 FILED BY THE PETITIONER IN O.S.545/1998 ON THE FILE OF II ADDL.MUNSIFF COURT, THIRUVANANTHAPURAM EXT.P9 TRUE COPY OF ORDER DATED 9.9.2010 IN IA NO.7302/2010 IN IN O.S.545/1998 ON THE FILE OF II ADDL.MUNSIFF COURT, THIRUVANANTHAPURAM EXT.P10 TRUE COPY OF ORDER DATED 9.9.2010 IN IA NO.7037/2010 IN IN O.S.545/1998 ON THE FILE OF II ADDL.MUNSIFF COURT, THIRUVANANTHAPURAM EXT.P11 TRUE COPY OF ORDER DATED 9.9.2010 IN IA NO.7036/2010 IN IN O.S.545/1998 ON THE FILE OF II ADDL.MUNSIFF COURT, THIRUVANANTHAPURAM //TRUE COPY// THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.126 of 2010 & 264 of 2010 -------------------------------------- Dated this the 11th day of October, 2010. JUDGMENT In O.P.(C) No.126 of 2010, notice was served on the respondents by special messenger and in addition to that, notice was served on counsel appearing for them in the trial court. That is sufficient service in view of Rule 59 of the Kerala High Court Rules, 1971. In O.P.No.264 of 2010 learned Government Pleader took notice for respondent. 2. Defendant in O.S.No.545 of 1998 of the court of learned Additional Munsiff-II, Thiruvananthapuram is the petitioner in these petitions. He claims to have got possession of the suit property as per decree in O.S.No.59 of 1950 and complains that while he was in possession and enjoyment of the property several suits were filed by or at the instance of judgment debtors in O.S.No.59 of 1950, one of such suits being O.S.No.545 of 1998. When petitioner was being examined as a witness in that case he was questioned about O.S.No.1559 of 2006 filed by him against the Government for fixation of boundary in which he got a favourable decree on 09.04.2010. Copy of plaint and written statement in O.S.No.1559 of 2006 were marked as Exts.B22 and B23 in O.S.No.545 of 1998. At that stage petitioner filed I.A.Nos.7036 of 2010, 7037 of 2010 and 7302 of 2010 in O.S.No.545 of 1998 to receive additional evidence and summon OP(C) Nos.126 & 264/2010 2 documents from O.S.No.1559 of 2006. Those applications were dismissed against which O.P.(C) No.126 of 2010 is preferred. Since petitioner has not so far got a copy of judgment in O.S.No.1559 of 2006 he has filed O.P.(C) No.264 of 2010 to direct the learned Additional Munsiff-II, Thiruvananthapuram to issue certified copy of judgment in that case at the earliest. 3. So far as I.A.Nos.7036 of 2010, 7037 of .2010 and 7302 of 2010 are concerned, those applications are dismissed by the learned Munsiff vide Exts.P11, P10 and P9, orders, respectively. I.A.No.7036 of 2010 which was dismissed as per Ext.P11, order was to summon the surveyor (in O.S.No.1559 of 2006) for proving the plan he had prepared and submitted in that case. Learned Munsiff dismissed that application for the reason that plan formed part of report of the Advocate Commissioner and hence the plan alone could not be marked in evidence, there was no prayer to examine the Advocate Commissioner and the attempt was to mark the copy of commissioner's report (in O.S.No.1559 of 2006) without examining the Advocate Commissioner which is not permissible under law. So far as I.A.No.7037 of 2010 is concerned, request in that petition was to mark the commission report and plan (in O.S.No.1559 of 2006). Learned Munsiff dismissed that application vide Ext.P10, order observing that respondents/plaintiffs are not parties in O.S.No.1559 of 2006 and hence the case cannot be reopened for the said purpose. Then came I.A.No.7302 to call for the original judgment from O.S.No.1559 of 2006. That application was dismissed vide Ext.P9, order since it was open to the petitioner to get certified OP(C) Nos.126 & 264/2010 3 copy of judgment in O.S.No.1559 of 2006 and produce the same in evidence. Learned counsel contends that the impugned orders are bad in law and at any rate petitioner may be given opportunity to file proper applications. 4. I shall refer to the impugned orders separately. So far as Exts.P10 and P11, orders are concerned, copy of plaint and written statement in O.S.No.1559 of 2006 are already marked in the present suit as Exts.B22 and B23. So far as copy of report of Advocate Commissioner and plan submitted by the surveyor in O.S.No.1559 of 2006 are concerned, true that respondents/plaintiffs are not parties in O.S.No.1559 of 2006 and hence, the report and plan may not as such be binding on them. But there is nothing wrong in petitioner producing the said documents and proving the same as provided under law as an item of evidence on his side with opportunity to examine the person competent to prove the said documents. Hence for the mere reason that respondents/plaintiff are not parties in O.S.No.1559 of 2006 attempt of petitioner to produce relevant documents in that case cannot be shut out. It is open to the petitioner to produce certified copy of the commissioner's report and plan in O.S.No.1559 of 2006, examine Advocate Commissioner and Surveyor and prove the said documents as provided under law with opportunity to the respondents to cross-examine Advocate Commissioner and Surveyor and disprove the correctness of the said report and plan. OP(C) Nos.126 & 264/2010 4 5. So far as Ext.P9, order is concerned I find no reason to interfere since attempt of petitioner was to call for original judgment of O.S.No.1559 of 2006 which cannot be permitted. Petitioner could get a certified copy of judgment in O.S.No.1559 of 2006 and produce the same in evidence. 6. Now coming to O.P.(C) No.264 of 2010 grievance of petitioner is that a copy of judgment in O.S.No.1559 of 2006 though applied for sufficiently early has not been delivered to the petitioner. It is submitted by learned counsel that a copy of judgment is required to be produced in O.S.No.545 of 1998. In the light of the circumstances stated above, these petitions are disposed of in the following lines: A. O.P.(C) No.126 of 2010: i. This petition is closed without prejudice to the right of petitioner to file appropriate applications in O.S.No.545 of 1998 producing certified copy of the report and plan in O.S.No.1559 of 2006 and summoning Advocate Commissioner and Surveyor who prepared the same to prove the said documents as provided under law. OP(C) Nos.126 & 264/2010 5 ii. So far as Ext.P9, order is concerned, it is made clear that notwithstanding dismissal of I.A.No.7302 of 2010 it will be open to the petitioner to obtain a certified copy of judgment in O.S.No.1559 of 2006 and produce the same in evidence on his side in O.S.No.545 of 1998. B. O.P.(C) No.264 of 2010: Learned Additional Munsiff-II, Thiruvananthapuram is directed to issue a certified copy of judgment in O.S.No.1559 of 2006 to the petitioner herein if applied for on usual terms as to cost as early as possible, at any rate within a period of three weeks from the date on which a copy of this judgment is produced by petitioner. THOMAS P.JOSEPH, Judge. cks