IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 20TH NOVEMBER 2009 / 29TH KARTHIKA 1931 WP(C).No. 27642 of 2009(O) -------------------------- OS.121/2004 of III ADDL.SUB COURT, KOZHIKODE .................... PETITIONER(S): --------------- 1. P.H.PRADEEP, S/O.P.HARIDASAN NAIR, ELEMENTS CORNER, 17/475 A4, CITY TOWER, KASABA AMSOM DESOM, KOZHIKODE TALUK. 2. ANIL KRISHNAN, S/O.GOPALAKRISHNAN MENON, ELEMENTS CORNER, 17/475 A4, CITY TOWER, KASABA AMSOM DESOM, KOZHIKODE TALUK. BY ADV. SRI.R.K.MURALEEDHARAN RESPONDENT(S): --------------- 1. M/S.CITY TOWER, MAVOOR ROAD, KASABA AMSOM DESOM, KOZHIKODE TALUK, REP. BY ITS MANAGING PARTNER, N.K.IBRAHIM. 2. N.K.IBRAHIM, S/O.LATE MOIDU, M/S.CITY TOWER, MAVOOR ROAD, KASABA AMSOM DESOM, KOZHIKODE TALUK. ADV. SRI.V.V.SURENDRAN FOR R1-2 SRI.P.A.HARISH FOR R1-2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC.27642/09 APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PLAINT IN O.S.NO.121/04 EXT.P2: COPY OF THE COMMON ORDER DATED 28.1.2003. EXT.P3: COPY OF THE JUDGMENT IN RCA.174 AND 175/03 DATED 13.12.2004. EXT.P4: COPY OF THE WRITTEN STATEMENT FILED BY THE RESPONDENTS DATED 18.8.2005. EXT.P5(A): COPY OF THE I.A.NO.2611/06 EXT.P5(B): COPY OF THE CASH RECEIPT DATED 23.1.1996 ISSUED BY THE 2ND RESPONDENT. EXT.P6: COPY OF THE AFFIDAVIT DATED 22.8.2006. EXT.P7: COPY OF THE I.A.3905/07. EXT.P8: COPY OF THE ORDER IN I.A.NO.3905/07 IN O.S.121/05 DATED 7.8.2009. /TRUE COPY/ P.A. TO JUDGE S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.27642 OF 2009 () ----------------------------------- Dated this the 20th day of November, 2009 J U D G M E N T Petitioners are the plaintiffs in O.S.No.121 of 2005 on the file of the Sub Court, Kozhikode. Suit is for recovery of money and the respondents are the defendants. Under lease arrangements with the respondents/defendants, petitioners/plaintiffs continued occupation over two rooms in respect of which previously there was rent control proceedings at the instance of the landlords for arrears of rent. Admittedly, the plaintiffs came into occupation of the rooms under two lease deeds dated 28.1.1996 and 25.1.1999 respectively. The case for eviction on the ground of arrears of rent was resisted by the petitioners in the rent control proceedings contending that a sum of Rs.5 lakhs each had been collected for the respective rooms as security apart from Rs.1 lakh each mentioned in the lease agreement. In the rent control proceedings, the original receipts purported to have WPC.27642/09 2 been issued by the landlords on collection of Rs.5 lakhs each as security were also produced. The rent control court declined to accept the contention raised by the defendants that they were entitled to adjust the security amount covered by the receipts in the arrears of rent due. However, it is submitted, the rent control court entered a finding that the two receipts produced, each for a sum of Rs.5 lakh, were genuine. Petition for eviction on the ground of Section 11 (2) (b) was allowed, and pursuant thereto, the landlords challenged the finding entered by the rent control court that the receipts are genuine which had been disputed by them. That appeal was found to be not maintainable for the reason that the finding stated to have been made by the rent control court would not give rise to a right of appeal to the landlords as covered by Section 18 of the Kerala Buildings (Lease and Rent Control) Act, 1965. The tenants thereafter filed the present suit for recovery of a sum of Rs.10 lakhs from the landlords given by them under the two receipts as security, which had been produced in the rent control proceedings. Certified copies of those receipts were produced in the suit WPC.27642/09 3 stating that the original receipts after return and collection from the rent control court had been lost irretrievably. The defendants/landlords resisted the suit claim filing a written statement, in which, among other contentions, they disputed the receipts on the basis of which the suit claim was raised. Plaintiffs moved an application producing a receipt for a sum of Rs.4 lakhs for sending it to the forensic expert with documents bearing the admitted signatures of the defendants for examination and report advancing a case that the landlords had issued other receipts including the receipt produced to them. The learned Sub Judge declined the request of the plaintiffs and dismissed the application for sending over the documents to the expert holding that it would in no way substantiate the suit claim canvassed on the basis of the two receipts, each for the sum of Rs.5 lakhs, in respect of which certified copies have been produced with the plaint. Ext.P8 is the copy of the order. Propriety and correctness of that order is challenged in the writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. WPC.27642/09 4 2. I heard the learned counsel on both sides. It is seen from the affidavit sworn to Ext.P7 application, under which the plaintiffs sought for sending over the receipt produced by them to a forensic expert, copy of which is produced as Ext.P5 (b), that receipt was not acted upon by the parties even on the admission of the plaintiffs. Paragraph (3) of the affidavit would show the receipt produced was not acted upon since the plaintiffs objected to certain terms contained therein. In what way that receipt covering Rs.4 lakhs related to the two receipts under which the suit claim was raised is also not spelt out either in the plaint or even in Ext.P7 application. A receipt which had not been acted upon by the parties after production is sought to be sent over to a forensic expert to substantiate the suit claim relating to two other receipts, the originals of which are admitted to have been lost irrecoverably. The court below taking note of the above circumstances concluded that even if the present receipt is shown to have been given by the landlords, which in fact has been disputed by them, that would not in any way to assist the WPC.27642/09 5 plaintiffs to substantiate the suit claim. I do not find any impropriety or illegality in Ext.P8 order passed in the given facts of the case. Writ Petition lacks merit, and it is dismissed. S.S.SATHEESACHANDRAN JUDGE prp