IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 28TH MAY 2010 / 7TH JYAISHTA 1932 WP(C).No. 8998 of 2010(O) ------------------------- OS.273/2007 of II ADDL.SUB COURT,ERNAKULAM .................... PETITIONERS: --------------- 1. T.P.SALIM, SON OF LATE HAMEED, AGED 50, RAZEENA MANSION, SAINT ALBERT'S HIGH SCHOOL LANE, ERNAKULAM. 2. T.P.SIRAJ, SON OF LATE HAMEED, AGED 43, RAZEENA MANSION, SAINT ALBERT'S HIGH SCHOOL LANE, ERNAKULAM REPRESENTED BY HIS POWER OF ATTORNEY HOLDER T.P.SALIM, SON OF LATE HAMEED, AGED 50, DO. DO. BY ADV. SRI.K.C.CHARLES SRI.M.POLY MATHAI RESPONDENTS: --------------- 1. ANTO DAVIS, S/O.K.A.DAVIS, VANITHA JEWELLERY, CHAMBER ROAD, ALUMKADAVU, BROADWAY, ERNAKULAM. 2. LEELA DAVIS, W/O.K.A.DAVIS, MAREENA HOUSE, KALOOR CROSS ROAD, ERNAKULAM, KOCHI-18. 3. M/S.GURUVAYOOR CONSTRUCTIONS A PARTNERSHIP FIRM REPRESENTED BY VINODKUMAR AGARWALA, S/O.LATE BANWARILAL, AGED 45, 49-BHARATHI COLONY, PEELAMEDU, COIMBATORE-4. 4. VINODKUMAR AGARWALA, S/O.LATE BANWARILAL, AGED 45, 49-BHARATHI COLONY, PEELAMEDU, COIMBATORE-4. ADV. SRI.C.T.JOSEPH FOR R1,2 SRI.JOE POLLAYIL FOR R1,2 SRI.ROSHIN IPE JOSEPH FOR R1,2 SRI.R.PARTHASARATHY FOR R3&4 SRI.C.JAYACHANDRAN FOR R3&4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.PC.NO.8998 OF 2010 APPENDIX PETITIONERS EXHIBITS: EXHIBIT P1 : ORDER DTD. 03-07-2009 IN O.S.273 OF 2007 OF the SUB COURT, ERNAKULAM EXHIBIT P2 : ORDER DTD.03-03-2010 PASSED BY THE SECOND ADDITIONAL SUB JUDGE, ERNAKULAM IN I.A.1277/2010 AND 1278/2010 RESPONDENTS EXHIBITS: EXHIBIT R2(a) : LIST OF DATES AND SYNOPSIS OF PROCEEDINGS EXHIBIT R2(b) : AFFIDAVIT DTD.22-09-2009 FILED BY ADDL. SECRETARY, COCHIN CORPORATION EXHIBIT R2(c) : AFFIDAVIT DTD.14-10-2009 FILED BY ADDL. SECRETARY, COCHIN CORPORATION EXHIBIT R2(d) : AFFIDAVIT DTD.23-10-2009 FILED BY SECRETARY, COCHIN CORPORATION EXHIBIT R2(e) : COPY OF I.A.1277/2010 DTD.06-02-2010 FILED BY PLAINTIFF FOR ARREST OF SECRETARY, COCHIN CORPORATION EXHIBIT R2(f) : COPY OF I.A.1278/2010 DTD.06-02-2010 FILED BY PLAINTIFF TO ISSUE SUMMONS TO SECRETARY, COCHIN CORPORATION FOR PRODUCTION OF DOCUMENTS EXHIBIT R2(g) : COPY OF COUNTER AFFIDAVIT DTD.10-02-2010 FILED BY 2nd DEFENDANT IN I.A.1277/2010. EXHIBIT R2(h) : COPY OF COUNTER AFFIDAVIT DTD.10-02-2010 FILED BY 2nd DEFENDANT IN I.A.1278/2010. THOMAS P JOSEPH, J. ---------------------------------------- W.P.C.No.8998 of 2010 --------------------------------------- Dated this 28th day of May, 2010 JUDGMENT Petitioners are plaintiffs in O.S.No.273 of 2007 of the Sub Court, Ernakulam. That suit is for recovery of possession of plaint B schedule building. After the parties adduced evidence, case was taken up for judgment. Later as per Ext.P1, order case was reopened by the learned Sub Judge and petitioners were directed to implead M/s.Guruvayoor Constructions and Vinodkumar Agarwala as additional defendants since their presence in the case is necessary for a proper decision of the controversy involved. There was also a direction to the petitioners to call for a file related to Ext.B5 series and Exts.A34 to 36 (file No.M.O.P.1/187/88) from the Corporation of Cochin. Thereafter summons were issued to the Secretary of Corporation of Cochin calling upon him to produce file No.M.O.P.1/187/88. Secretary of the Corporation filed affidavit on 23-10-2009 stating that files are not available and that affidavit was accepted by the learned Sub Judge on 16-11-2009. Thereafter, petitioners filed I.A.Nos.1277 of 2010 and 1278 of 2010 again to direct the Secretary to produce the very same documents and to take coercive steps for production of the documents. Those W.P.C.No.8998 of 2010 : 2 : applications were dismissed by learned Sub Judge vide Ext.P2, judgment on 03-03-2010 which is under challenge in this proceedings. Learned counsel for petitioner submits that in the nature of the controversy involved, the file is relevant and necessary for decision and that Secretary of Corporation cannot plead that the files are not available. According to the learned counsel, if coercive steps are taken Secretary of the Corporation will produce the documents. Learned counsel for respondent Nos.1 and 2 contended that Secretary of the Corporation filed affidavit on 23-10-2009 which was accepted by the learned Sub Judge on 16- 11-2009. 2. Now question for consideration is whether it is necessary in the light of the affidavit filed by Secretary of Corporation on 23-10-2009 and which was accepted by the learned Sub Judge on 16-11-2009, to issue further direction to the Secretary of Corporation to cause production of the document and initiate coercive steps against him for production of the document. The Secretary in his affidavit sworn on 23-10-2009 has stated that in spite of earnest efforts the file in question could not be traced. There is nothing on record to show that files have been purposely withheld by the Secretary so that his statement in the affidavit that files could not be traced in search is incorrect. Learned Sub Judge W.P.C.No.8998 of 2010 : 3 : considered these aspects in Ext.P2, order. Learned Sub Judge has stated that pursuant to the summons issued from the court the Secretary of Corporation filed affidavit on 23-09-2009 and that on 30-10-2009 also the Secretary filed affidavit stating that files are not available as it could not be traced. It is in the above circumstances that court below found that further direction to cause production of the file or, coercive steps would not yield result and consequently dismissed the application. Having gone through records and Ext.P2, order I do not find reason to interfere with the order. In that, there is nothing on record to show that the affidavit filed by the Secretary is untrue or that for any reason whatsoever files are withheld by the Secretary. There is nothing on record to show that the Secretary, a responsible officer of the Corporation has sworn the affidavit without conducting any search for the file concerned. In these circumstances, I do not find reason to interfere with the impugned order. Resultantly the writ petition is dismissed. (THOMAS P JOSEPH, JUDGE) Sbna/-