IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 18TH AUGUST 2011 / 27TH SRAVANA 1933 OP(C).No. 2734 of 2011(O) ----------------------------------- OS.16/2010 of MUNSIFF COURT,MUVATTUPUZHA .................... PETITIONER (S): ------------------------- SUNNY CHERIAN, AGED 57 YEARS, S/O. LATE CHERIAN, MANGALASSERIYIL HOUSE, AYAVANA P.O., ENANALLOOR KARA, MOOVATTUPUZHA. BY ADV. SRI.V.PHILIP MATHEW RESPONDENT(S): -------------------------- 1. MARY, AGED 57 YEARS, W/O.JOHNY, PALAKKADAN VEEDU, THANKALAM KARA, THRIKKARIYOOR VILLAGE, THANKALAM P.O., PIN. (D/O. MANAGALASSERIL CHERIAN, KANICHATT, ENANELLOOR VILLAGE.). 2. NITHIN K.BABU, AGED 23 YEARS, S/O.BABU, KOTTUKKAL HOUSE, ANIKKATKARA, MUVATTUPUZHA VILLAGE, ANIKKAT P.O. PIN. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 18/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss OP(C) NO.2734/2011 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE IA. FOR APPOINTMENT OF ADVOCATE COMMISSIONER IN OS. 16/2010. P2:- COPY OF THE ORDER ALLOWING THE COMMISSION APPLICATION IN OS. 16/2010. P3:- COPY OF THE REPORT DTD. 5/10/2010 ALONG WITH A LETTER FROM TALUK SURVEYOR, MUVATTUPUZHA FILED BY THE ADVOCATE COMMISSIONER. P4:- COPY OF THE MEMO DTD. 16.3.2011 FILED BY THE ADVOCATE COMMISSIONER IN OS. 16/2010. P5:- COPY OF THE OBJECTION DTD. 11.7.2011 FILED BY THE PETITIONER. P6:- COPY OF THE 'B' DIARY IN THE SUIT OS. NO.16/2010 ON THE FILE OF MUNSIFF COURT, MUVATTUPUZHA. RESPONDENT'S EXHIBITS NIL:- TRUE COPY P.S. TO JUDGE tss THOMAS P.JOSEPH, J. ==================================== O.P(C) No.2734 of 2011 ==================================== Dated this the 18th day of August, 2011 J U D G M E N T Petitioner is the first defendant in O.S. No.16 of 2010 of the court of learned Munsiff, Muvattupuzha aggrieved by Ext.P6, order dated 15.07.2011 directing petitioner to produce his title deeds for fixation of boundary of the suit property. It is contended by the learned counsel that there is no provision in the Code of Civil Procedure (for short, “the Code”) which enables the Advocate Commissioner to give any such request to the court to direct production of documents of petitioner. It is contended that attempt of the first respondent to identify the suit property with reference to her title deed and survey records failed. It is also contended that measurement of property of petitioner is not warranted and at any rate is only to give rise to unnecessary litigations. Another contention is that objection preferred by petitioner has not been adverted to before passing the impugned order. 2. So far as the last objection is concerned it is seen from the impugned order that objection was preferred to the memo filed O.P(C) No.2734 of 2011 -: 2 :- by the Advocate Commissioner requesting the court to direct petitioner produce his title deeds after the order was passed. If that be so, question of looking into the objection raised by petitioner while passing the order did not arise. 3. On the next question whether Commissioner could have requested the court to direct petitioner to produce his title deeds and the court could have issued such a direction is concerned, Rule 9 of Order XXVI of the Code provides for appointment of Commissioner for local inspection. Under Rule 12 the court has power to give necessary instructions to the Advocate Commissioner. The prayer in the suit is for a declaration of title, fixation of boundary, etc. and necessarily the suit property has to be measured. It is seen from Ext.P3, report of the Advocate Commissioner and the letter of the Taluk Surveyor to the Advocate Commissioner that in spite of the Advocate Commissioner inspecting the property twice with the surveyor, he could not identify the suit property as there was practical difficulty in identifying the suit property. The Surveyor has reported the difficulties which included that there appears to be discrepancy in the boundary line of the property comprised in Sy.No.258/14. It is hence that the Advocate Commissioner submitted Ext.P4, memo requesting the court to direct petitioner O.P(C) No.2734 of 2011 -: 3 :- produce his documents of title if he held property in Sy.No.258/14. 4. I stated about Ext.P3, report of the Advocate Commissioner and the letter (given to the Advocate Commissioner by the Surveyor) that there appeared to be discrepancy in the measurement of boundary lines of the property in Sy.No.258/14. In that situation it was necessary to ascertain whether petitioner owns property in Sy.No.258/14 and it is in that view of the matter that the Advocate Commissioner requested, and learned Munsiff directed petitioner to produce his title deeds if he owns property in Sy.No.258/14. I am not inclined to think that court had no power to issue such a direction. I must bear in mind that procedural law is a handmade for justice and not to perpetuate injustice by technicalities. Learned Munsiff directed petitioner to produce the title deeds if petitioner owns any property in Sy.No.258/14 as sub division sketch is not available. But it may not be necessary for petitioner to produce the original documents of title. It is sufficient that petitioner produces Notary attested photocopies of the documents or certified copies obtained from the Sub Registry before the learned Munsiff. Original Petition is disposed of with the above direction. O.P(C) No.2734 of 2011 -: 4 :- Learned Munsiff may grant time to the petitioner to comply with the said direction. THOMAS P. JOSEPH, JUDGE. vsv