IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 15TH JUNE 2010 / 25TH JYAISTHA 1932 WP(C).No. 13808 of 2010(O) -------------------------- IA NO.329/2009 IN OS.175/2007 of SUB COURT,KOCHI .................... PETITIONER(S): --------------- BIJU @ BENEDICT, PALLIPPARAMBIL HOUSE, PALLURUTHY, KOCHI-5. BY ADV. SRI.B.KRISHNA MANI RESPONDENT(S): --------------- 1. SEBASTIAN, S/O.KARLOSE, ARAKKAL HOUSE, XIV/619, MOOLAMKUZHI, RAMESWARAM VILLAGE, KOCHI. 2. VARGHESE, S/O.KARLOSE, ARAKKAL HOUSE, XIV/619, MOOLAMKUZHI, RAMESWARAM VILLAGE, KOCHI. 3. ARNOSE, S/O.KARLOSE, ARAKKAL HOUSE, XIV/619, MOOLAMKUZHI, RAMESWARAM VILLAGE, KOCHI. 4. BABY THOMAS, W/O.THOMAS, VADAKKAL HOUSE, NEAR RAILWAY GATE, THYKKATTUKARA P.O., ALWAYE-6. 5. SMT.JESY, W/O.YESUDAS, MANJUKUZHI VEEDU, AZHEEKKAL, ANDHAKARANAZHI P.O. 6. A.K.PETER, S/O.KARLOSE, ARACKAL HOUSE, MUNDAMVELI P.O., SAUDI, KOCHI-7. ADV. SRI.T.A.NARAYANAN NAIR FOR R1 TO 5 SRI.SHIVSANKARAN RAO FOR R1 TO 5 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.13808/2010 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF PLAINT IN OS 175/07 OF SUB COURT, KOCHI DATED NIL EXT.P2 TRUE COPY OF WRITTEN STATEMENT DATED 11.12.2007 EXT.P3 TRUE COPY OF APPLICATION DATED 2.3.2009 EXT.P4 TRUE COPY OF DETAILED OBJECTION DATED 29.5.2009 EXT.P5 TRUE COPY OF ORDER IN IA 329/2009 IN OS 175/2007 OF SUB COURT KOCHI DATED 25.1.2010 EXT.P6 TRUE COPY OF APPLICATION, IA 329/2009 IN OS 175/2007 OF SUB COURT, KOCHI DATED 2.3.2009 EXT.P7 TRUE COPY OF OBJECTION DATED 29.5.2009 EXT.P8 TRUE COPY OF ORDER DATED 25.1.2010 PASSED BY SUB COURT, KOCHI //TRUE COPY// THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C)No.13808 of 2010 -------------------------------------- Dated this the 15th day of June, 2010. JUDGMENT Challenge in this Writ Petition is to Exts.P5 and P8, orders. Petitioner is the plaintiff in O.S.No.175 of 2007 of the court of learned Sub Judge, Kochi seeking partition and separate possession of 10/24 shares he claimed, he has in the said property. Contesting respondents/defendants filed written statement denying claim of petitioner and filed Ext.P3, application to direct petitioner to implead additional defendant Nos.7 to 9. They also filed Ext.P6, application to direct petitioner to produce the original of release deed No.3861 of 2002 and assignment deed No.4053 of 2006. Learned Sub Judge after considering the objection raised by the petitioner allowed Exts.P3 and P6, applications vide Exts.P5 and P8 orders which are under challenge in this proceeding. Learned counsel for petitioner contends that in the nature of the claim made by the petitioner it was not necessary to implead additional defendant Nos.7 to 9 in the suit. So far as Ext.P8, order directing production of original of documents is concerned, learned counsel states that a photocopy of the assignment deed relied on by him was produced along with the plaint and that he is prepared to produce its original in the course of trial. Petitioner is not in custody of the original of the release deed. He is prepared to produce its certified copy. Learned counsel for respondents contend that additional defendant Nos.7 to 9 are necessary parties to the suit failing which the suit is liable to be dismissed. It WP(C) No.13808/2010 2 is also contended that petitioner has only produced a photocopy of the assignment deed he relied upon which is not admissible in evidence and that the original of the said document is necessary. According to the learned counsel, court has the power to direction production of the relevant documents. 2. So far as impleadment of additional defendant Nos.7 to 9 is concerned, case of petitioner/plaintiff is that Prestina and Rosy, widow and daughter of Karlose to whom the property originally belonged released their right in the suit property in favour of Laly, another daughter of Karlose as per release deed No.3861 of 2002 and vide assignment deed No.4053 of 2006, the said Laly has assigned the right of Prestina and Rosy she got release as per document No.3861 of 2002. It is accordingly that petitioner claimed 10/24 shares in the suit property. 3. In the light of alleged acquisition of 10/24 shares of Prestina and Rosy through Laly as aforesaid, petitioner has stepped into the shoes of Prestina and Rosy. If petitioner is able to prove that he acquired the right of Prestina and Rosy in the suit property it is not necessary that Prestina and Rosy should be impleaded as parties to the suit. There are other modes for petitioner to prove his case of assignment of rights of Prestina and Rosy. It is open to the petitioner to prove his claim in respect of that. In the circumstances, learned Munsiff was not correct in directing petitioner to implead Prestina and Rosy as parties to the suit. WP(C) No.13808/2010 3 4. But, the direction for impleadment of Laly stands on a different footing. Reason is that petitioner does not have a case that he acquired the right of Laly in the suit property. Hence Laly being one of the legal heirs of Karlose is a necessary party to the suit. There is no reason why I should interfere with the direction of learned Munsiff as regards impleadment of Laly as a party to the suit. 5. What remained is whether the learned Munsiff was correct in directing petitioner to produce the original of release deed No.3861 of 2002 and assignment deed No.4053 of 2006. Petitioner has produced a photocopy of assignment deed No.4053 of 2006. If in the nature of contentions advanced by contesting respondents it is necessary for the petitioner has to produce the relevant documents but if he does not produce the same he runs the risk. There is no reason why learned Munsiff should compel petitioner to produce the documents at any rate, at this stage. I make it clear that it will be open to the petitioner if he wishes to prove his case and if production of the said documents or if he is not in possession of the original, its certified copy as the law permits is necessary to prove his case in the course of trial. Resultantly, this Writ Petition is disposed of in the following lines: i. Ext.P5, order to the extent it concerned impleadment of Prestina and Rosy is set aside. But, the direction to implead Laly as a party to the suit will remain in force. WP(C) No.13808/2010 4 ii. So far as Ext.P8, order directing production of relevant documents is concerned, I make it clear that if petitioner wishes to prove his claim of co- ownership in the suit property, it will be open to him to produce the relevant documents as provided under law in the course of trial of the suit if he is otherwise entitled to that course. In case petitioner is not in possession of original of any of those documents, it will be open to him, if he is otherwise entitled to adduce secondary evidence as provided under law. In case there is any dispute regarding the genuineness of the document it will be open to the contesting respondent to call for the original document from the person in custody of it. THOMAS P.JOSEPH, Judge. cks