IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 10TH MARCH 2011 / 19TH PHALGUNA 1932 OP(C).No. 989 of 2011(O) ------------------------ AGAINST THE ORDER DATED 04/03/2011 IN IA.722,724/2011 IN OS.436/2008 of ADDL.SUB COURT,KOTTAYAM .................... PETITIONER ------------------------------ SARAMMA GEORGE, W/O.JOHN K.GEORGE,GEMS KANDATHIL,SOUTH FORT (KOTTAKAKAM),KOTTARKAVU MURI, MAVELIKKARA VILLAGE AND TALUK, ALAPPUZHA DIST.FROM VAZHUVELIPLACKAL HOUSE, PANAYAMPALA, KARUKACHAL PO NEDUMKUNNAM VILLAGE & PO,CHANGANASSERY TALUK, KOTTAYAM DT.REP.BY POWER OF ATTORNEY HOLDER KOSHY GEORGE,S/O.GEORGE, VAZHUVELIPLACKAL HOUSE, PANAYAMPALA, KARUKACHAL PO NEDUMKUNNAM VILLAGE & PO,CHANGANASSERY TALUK, KOTTAYAM DT. BY ADV. SRI.P.C.HARIDAS RESPONDENT(S): --------------- 1. K.C.VARKEY, S/O.CHACKO, THOPPIL VALIYAKAROTTU HOUSE, PANAYAMPALA, KARUKACHAL P.O., NEDUMKUNNAM VILLAGE & PO, CHANGANASSERY TALUK, KOTTAYAM DISTRICT 686 540. 2. JACOB VARGHESE, S/O.K.C.VARKEY, AGED 52 YEARS, THOPPIL VALIYAKAROTTU HOUSE, PANAYAMPALA, KARUKACHAL P.O., NEDUMKUNNAM VILLAGE & PO, CHANGANASSERY TALUK, KOTTAYAM DISTRICT 686 540. ADV. SRI.BECHU KURIAN THOMAS FOR R1 SRI.ROSHEN.D.ALEXANDER FOR R1 THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 10/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. ----------------------------------- O.P.(C).No.989 of 2011 ----------------------------------- Dated this the 10th day of March, 2011 JUDGMENT The petitioner, the plaintiff in O.S.No.436 of 2008, on the file of the court of the Subordinate Judge of Kottayam, filed I.A.No.724 of 2011 to appoint an Advocate Commissioner to examine the Notary Public who notarised a document which was produced by the plaintiff before court. The plaintiff also filed I.A.No.722 of 2011 to accept the additional witness list to enable the plaintiff to examine the Notary Public. The court below dismissed both these applications, which are under challenge in this Original Petition. The case of the plaintiff is that in 1998, the first defendant sought permission from the mother of the plaintiff as well as the plaintiff to use the plaint schedule item No.2 for vehicular traffic to enable the first defendant to take lorries for removing the rubber trees cut from the OPC No.989/2011 2 plaint schedule item No.3. It is stated that the mother of the plaintiff granted permission on receiving an undertaking executed by the first defendant on 25.7.1998 which was executed on a stamper paper worth ` 50/-. It is stated by the plaintiff that the original of the said undertaking was returned to the first defendant after the defendant completed removal of the rubber trees. A notarised copy of the undertaking signed by the first defendant was produced by the plaintiff in the case. The plaintiff also filed an application to direct the first defendant to produce the original of the undertaking. 2. The defendants denied the execution of the undertaking. It is stated that the attesting witnesses to the undertaking were examined on the side of the plaintiff. The counsel submits that the notarised copy of the undertaking was not marked in the case, accepting the objection raised by the defendants. The counsel submits that the plaintiff could not invite the attention of the attesting witnesses to the OPC No.989/2011 3 notarised copy of the document in order to prove the due execution of the undertaking. 3. In these circumstances, the plaintiff filed I.A.No.724 of 2011 to examine the Notary Public as a witness. The Notary Public, who was an Advocate practising in the High Court was subsequently elevated as a Judge of this Court. In these circumstances, the plaintiff requested to examine the Hon'ble Judge, erstwhile Notary Public, on Commission. 4. The court below dismissed the application to examine the Notary Public and held that the execution of the undertaking is to be proved by the plaintiff and the mother. By examining the Notary Public, execution of the undertaking cannot be proved. The court below also held that attesting a true copy of a document does not appear to be an act contemplated under the Notaries Act. It was further held by the court below that the evidence sought to be adduced by OPC No.989/2011 4 examining the Notary Public is unnecessary and waste of judicial time and it will not help the party in any way. On the ground that the request to appoint a Commissioner to examine the Notary Public was dismissed, the court below dismissed I.A.No.722 of 2011 as well. 5. The learned counsel for the petitioner submitted that the finding arrived at by the court below that attesting a true copy is not a function of the Notary Public under the Notaries Act, is incorrect. The counsel relied on the decision in Banarsi Dass vs. Maman Chand (AIR 1992 Punjab and Haryana 145). I do not think it is necessary to decide that question in this Original Petition or in I.A.No.724 of 2011. To a query by the court, the learned counsel for the petitioner submitted that there is no case for the defendants that the notary attested copy of the alleged undertaking is a forged document or that the notarial seal and signature of the notary were not affixed and made by the Notary Public. So long as OPC No.989/2011 5 the defendants have no such contention, it is not necessary to examine the Notary Public. The Notary Public could at best give evidence that he verified the original and attested the copy as the true copy of the original. So long as the seal and signature of the Notary Public are not denied by the defendants, proof of the same is not required. Therefore, I am not inclined to interfere with the order passed by the court below. For the aforesaid reasons, the Original Petition is dismissed. K.T.SANKARAN JUDGE csl