IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 18TH SEPTEMBER 2009 / 27TH BHADRA 1931 WP(C).No. 13370 of 2009(O) -------------------------- OS.91/2004 of SUB COURT, OTTAPPALAM .................... PETITIONER(S): ------------------------ P.G.CHAND NIVAS, S/O.GOPALAN, RESIDING AT PARAKOTTIL, VELLINEZHI AMSOM, KUTTANASSERI DESOM, OTTAPALAM TALUK, PALAKKAD DISTRICT. BY MR.V.CHITAMBARESH, SENIOR ADVOCATE, MR.T.C.SURESH MENON, MR.JIBU P THOMAS, MR.A.R.NIMOD, MR.C.A.ANOOP. RESPONDENT(S): ---------------------------- 1. VIJAYAN, S/O.KRISHNAN, RESIDING AT PARAKOTTIL VEEDU, VELLINEZHI AMSOM, KUTTANASSERI DESOM, OTTAPALAM TALUK, PALAKKAD DISTRICT. 2. THE MANAGER, CANARA BANK, VELLINEZHI BRANCH, THIRUVAZHIYODE, OTTAPALAM, PALAKKAD DISTRICT. R1 BY ADV. MR.MILLU DANDAPANI R2 BY ADV. MR.P.GOPINATH MENON, SC, CANARA BANK THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.13370/2009 O APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE ORDER IN I.A.NO.511/2009 IN O.S.NO.91/2004 ON THE FILE OF THE COURT OF THE SUBORDINATE JUDGE OF OTTAPALAM DTD. 28/02/2009. P2: COPY OF THE ORDER IN I.A.NO.709/2009 IN O.S.NO.91/2004 ON THE FILE OF THE COURT OF THE SUBORDINATE JUDGE OF OTTAPALAM DTD. 18/03/2009. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.S.TO JUDGE Kss S.S. SATHEESACHANDRAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.13370 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 18th September, 2009 JUDGMENT The Writ Petition is filed seeking the following reliefs: 1. To call for the records leading to the issue of Exts.P1 and P2 and set aside the same. 2. To allow I.A.Nos.511/2009 and 709/2009 in O.S.No.91/2004 on the file of the Court of the Subordinate Judge of Ottapalam. 3. To issue a writ in the nature of mandamus directing the court below to issue summons for the production of the documents sought for. 2. Petitioner is the supplemental third plaintiff in O.S.No.91 of 2004 on the file of the Sub Court, Ottapalam, which is one for declaration and partition. The case of the plaintiffs is that the 9th and 10th defendants fraudulently got mortgage of item No.7 of the plaint schedule property. That property was mortgaged by the brother of the 9th defendant by name Gopalan allegedly impersonating the predecessor of the present petitioner, the original plaintiff in the suit who is no more. The bank brought up the property to sale by public auction for nonpayment of the loan and the 9th defendant knocked down the property in auction. So much so, to substantiate the case W.P.C.No.13370/09 - 2 - alleged there was impersonation by the brother of the 9th defendant by name Gopalan as the original plaintiff, the petitioner sought for production of some documents from the Raj Bhavan, Karnataka, where the deceased plaintiff, the predecessor of the petitioner, had worked as a Head Butler. That application was dismissed by the court below vide P1 order. Petition filed by the petitioner to review that order was also dismissed vide P2 order. Propriety and correctness of those orders is challenged in the Writ Petition invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of india. 3. I heard the counsel on both sides. Records sought to be summoned are essential for a fair and proper adjudication of the disputes involved in the suit, is the submission of the learned counsel for the petitioner. Learned counsel for the second respondent-bank submits that the property mortgaged to the bank as security for the loan had been brought to sale in proceedings under the Revenue Recovery Act and anyone interested in setting aside a sale under the Revenue Recovery Act can seek recourse as provided under the provisions of that Act. Counsel for the petitioner submits when the pledge itself is fraudulent, it is open to the petitioner to challenge it by a separate suit. It may be so, subject to the rider under Section W.P.C.No.13370/09 - 3 - 72 of the Revenue Recovery Act, which demand pleading and proof as to the fraud. Having regard to the nature of the suit filed, which is one for declaration and partition, at this stage solely on the basis of P1 and P2 orders and the submissions made, it cannot be proper or appropriate for this court to express any opinion on the merit of the suit claim or on the application moved by the petitioner for summoning the records which are stated to be the attendance register and the service book of the deceased plaintiff. The court below is directed to consider whether in the nature of the reliefs claimed in the suit and the allegations raised therein with reference to the provisions under the Revenue Recovery Act as well, the plaintiff has made out a case for summoning the documents sought for. The reason stated in P1 order for dismissal of the application for summoning the documents cannot be approved. Production of certified copies of the documents after applying for them as suggested by the court may not serve any purpose when the original documents of deceased plaintiff bearing his signatures had been sought for to substantiate the case that he had been impersonated by another in creating a mortgage fraudulently in favour of a bank. The orders passed, P1 and P2, will not stand in the way of the court in examining that question afresh and in passing appropriate orders, W.P.C.No.13370/09 - 4 - taking note of the controversy arising for adjudication in the suit, the nature of allegations raised and the reliefs claimed, and the relevant provisions of law applicable in summoning the documents. Writ Petition is disposed as above. srd S.S. SATHEESACHANDRAN, JUDGE