IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 30TH AUGUST 2010 / 8TH BHADRA 1932 WP(C).No. 6591 of 2009(O) ------------------------- AGAINST THE ORDER DATED 08.01.2009 IN IA. 5729 /2008 IN OS.202/2007 of SUB COURT, NORTH PARAVUR .................... PETITIONER: --------------- ADWAITHASRAMAM, ALUVA REPRESENTED BY THE MADADHIPATHI @ SECRETARY,SIVASWAROOPANANDA, AGED 43 YEARS, S/O.VIJAYAN, MADATHIPATHI, ADWAITHASRAMAM, ALUVA. BY ADV. SRI.K.S.BABU SMT.N.SUDHA RESPONDENTS: --------------- 1. MUKUNDAN, AGED 76 YEARS, S/O.KUTTAN,VALLATTUTHARA HOUSE, VADAKKUMPURAM MURI,CHENDAMANGALAM VILLAGE, PARAVUR TALUK. 2. GOPALAKRISHNAN, AGED 76 YEARS, S/O.KUTTAN,VALLATTUTHARA HOUSE, VADAKKUMPURAM MURI,CHENDAMANGALAM VILLAGE, PARAVUR TALUK. 3. CHANDRABOSE, AGED 69 YEARS, S/O.KUTTAN,VALLATTUTHARA HOUSE, VADAKKUMPURAM MURI,CHENDAMANGALAM VILLAGE, PARAVUR TALUK. 4. BARATHI, AGED 78 YEARS, W/O.SUKUMARAN VALLATTUTHARA HOUSE, VADAKKUMPURAM MURI, CHENDAMANGALAM VILLAGE, PARAVUR TALUK. 5. SUBHA, AGED 50 YEARS,D/O.SUKUMARAN VALLATTUTHARA HOUSE, VADAKKUMPURAM MURI, CHENDAMANGALAM VILLAGE, PARAVUR TALUK. 6. BHASURAN, AGED 47 YEARS,S/O.SUKUMARAN VALLATTUTHARA HOUSE, VADAKKUMPURAM MURI, CHENDAMANGALAM VILLAGE, PARAVUR TALUK. WP(C).No. 6591 of 2009 7. SUBHAGU, AGED 44 YEARS,S/O.SUKUMARAN VALLATTUTHARA HOUSE, VADAKKUMPURAM MURI, CHENDAMANGALAM VILLAGE, PARAVUR TALUK. 8. SREEJA, AGED 39 YEARS,W/O.LATE SUBHASH VALLATTUTHARA HOUSE, VADAKKUMPURAM MURI, CHENDAMANGALAM VILLAGE, PARAVUR TALUK. 9. PARVATHY, (MINOR) AGED 17 YEARS D/O.LATE SUBHASH,VALLATTUTHARA HOUSE, CHENDAMANGALAM VILLAGE, PARAVUR TALUK. REP. BY HER MOTHER AND GUARDIAN SREEJA, 8TH RESPONDENT HEREIN. 10. SREEKANTH, (MINOR) AGED 14 YEARS, S/O.LATE SUBHASH,VALLATTUTHARA HOUSE, CHENDAMANGALAM VILLAGE, PARAVUR TALUK. REP. BY HER MOTHER AND GUARDIAN SREEJA, 8TH RESPONDENT HEREIN. 11. NARAYANAN, AGED 78 YEARS, S/O.KUTTAN VALLATTUTHARA HOUSE,CHENDAMANGALAM VILLAGE, PARAVUR TALUK, 12. PARAVUR MAHILA CO-OPERATIVE BANK LTD NO.1259, NORTH PARAVUR. 13. PARAVUR CO-OPERATIVE BANK LTD.NO.1759 NORTH PARAVUR. ADV. SRI.P.K.SAJEEV SRI.V.M.KRISHNAKUMAR FOR R-12 SRI.S.SARAVANA BHAVAN FOR E-12 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 6591 of 2009 APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1 : COPY OF the WILL DTD.22.01.1987 EXHIBIT P2 : I A No.5729 OF 2008 IN O.S.No.2007 OF THE SUB COURT, NORTH PARAVUR EXHIBIT P3 : ORDER DTD. 08.01.2009 IN I A No.5729 OF 2008 IN O.S.No.2007 OF THE SUB COURT, NORTH PARAVUR EXHIBIT P4 : WITNESS LIST DTD. 03.12.2008 FILED ON 05.12.2008 IN O.S.No.2007 OF THE SUB COURT, NORTH PARAVUR RESPONDENTS' EXHIBITS: NIL True Copy P. A to Judge THOMAS P JOSEPH, J. ---------------------------------------- W.P.C.No.6591 of 2009 --------------------------------------- Dated this 30th day of August, 2010 JUDGMENT This writ petition is in challenge of Ext.P3, order passed by the learned Sub Judge, North Paravur on Ext.P2, application (I.A.No.5729 of 2008) in O.S.No.202 of 2007 of that court. Respondent Nos.1 to 11 filed the suit seeking declaration of title over plaint A and B schedule properties, that Will dated 22-01-1987 allegedly executed in favour of petitioner/defendant No.1 is void and for consequential reliefs. Petitioner/ defendant No.1 filed written statement and also made a counter claim for recovery of an item of property referred to in the written statement schedule, injunction and other reliefs. Petitioner claims right over the property as per the disputed Will. When the case was included for trial in the list petitioner filed Ext.P2, application to summon filing sheet of the disputed Will (from book No.III of the office of the Sub Registrar) along with thumb impression register maintained in that office to prove due execution of the Will. Petitioner has along with the written statement produced certified copy and photocopy of the disputed Will. Though, respondents did not file any counter learned Sub Judge relying on circular No.14/66 dated 11-08-1966 issued by W.P.C.No.6591 of 2009 : 2 : this court (on the administrative side) dismissed the application observing that the documents requested for cannot be summoned. That order is under challenge. Learned counsel for petitioner states that circular relied on by learned Sub Judge does not prohibit summoning relevant documents. It is also submitted by learned counsel that summoning of the relevant documents was required since original of the Will was irrecoverably lost. 2. I have gone through the order under challenge. Learned Sub Judge observes that there is no case for petitioner that original of the Will is lost (now it is contended before me that original of the Will is irrecoverably lost). Learned Sub Judge also placed reliance on circular No.14/66 referred to above. That circular does not, in every circumstance prohibit summoning of documents from the office of Sub Registrar. It only states that such documents are to be summoned from the registration department only when it is absolutely unavoidable. Certain other direction are also issued to the subordinate courts to be observed while summoning such documents. Similar directions are contained in circular No.15/64 dated 21-11-1964 also. But that concerns marking on the original documents summoned from the sub registrar's office and forwarded to the Finger Print Bureau and other departments. Rule 120(4) of the Civil Rules of Practice deals with the formality to be complied while book No.IV is summoned W.P.C.No.6591 of 2009 : 3 : and produced by the District Registrar or Sub Registrar concerned. Here what is requested to be summoned is filing sheet from book No.III of the office of Sub Registrar concerned and the thumb impression register. Learned counsel states that original of the Will is irrecoverably lost. In the circumstance, it is necessary to prove due execution of the Will with the filing sheet of book No.III and thumb impression register concerned which are requested to be summoned from office of Sub Registrar concerned. Having regard to the facts and circumstances of the case I am inclined to think that petitioner must be given an opportunity to summon the relevant documents as prayed for in Ext.P2, application. But I make it clear that learned Sub Judge shall not retain the original documents summoned from the office of Sub Registrar on file. Instead, it will be open to the petitioner to get photocopy of the relevant documents produced from the office of District Registrar/Sub Registrar as the case may be in the court and get it certified as per order of the court below by its Chief Ministerial Officer. Learned Sub Judge shall also ensure that no marking is made on the original documents and it is also not introduced in evidence. After proving copy of the Will produced by the petitioner, learned Sub Judge shall return the documents summoned from the office of the District Registrar/Sub Registrar concerned to that office without any delay complying with the W.P.C.No.6591 of 2009 : 4 : circulars and provisions of the Civil Rules of Practice. Resultantly this writ petition is allowed. Ext.P3, order is set aside. Ext.P2, application is allowed subject to the directions made above. (THOMAS P JOSEPH, JUDGE) Sbna/-