IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 21ST JUNE 2010 / 31ST JYAISTHA 1932 WP(C).No. 37477 of 2009(O) -------------------------- OS.144/2008 of SUB COURT, TIRUR .................... PETITIONER(S) :- ----------------------- HAMZA HAJI, S/O.C.C.POKKU, CHOLAKKAL CHEPPALA, VALAVANNUR AMSOM DESOM, VALAVANNOOR, MALAPPURAM DISTRICT. BY ADV. SRI.JAMSHEED HAFIZ RESPONDENT(S) :- ------------------------ ABDUL HAMEED C.C. S/O. C.C. POKKU CHOLAKKAL CHEPPALA, VALAVANNUR AMSOM DESOM, VALAVANNUR, MALAPPURAM DISTRICT. ADVS. SRI.B.KRISHNAN SRI.R.PARTHASARATHY THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: jvt WP(C).No. 37477 of 2009 APPENDIX Petitioner's Exhibits :- Ext.P1 :- Copy of the plaint in O.S.144/2008 before Sub Court, Tirur dated 24.06.2008. Ext.P2 :- Copy of the written statement filed by the petitioner in O.S.144/2008 before Sub Court, Tirur dated 15.10.2008. Ext.P3 :- Copy of the order in I.A.1297/2008 dated 4.4.2009 in O.S.144/2008 before Sub Court, Tirur. Ext.P4 :- Copy of the accounts of statement produced by the petitioner dated 30.6.2009. Ext.P5 :- Copy of the accounts of statement produced by the petitioner dated 2.10.2009. Ext.P6 :- Copy of the I.A.597/2009 in O.S.144/2008, Sub Court, Tirur dated 24.2.2009. Ext.P7 :- Copy of the counter in I.A.597/2009 in O.S.144/2008 before Sub Court, Tirur dated 23.3.2009. Ext.P8 :- Copy of the notice issued in the appeal under R.I.Act dated 30.4.2009. Ext.P9 :- Copy of the order in I.A.No.597/2009 in O.S.No.144/2008 dated 25.11.2009 of the Sub Court, Tirur. Respondent's Exhibit :- NIL //True Copy// P.A. To Judge THOMAS P. JOSEPH, J. ~~~~~~~~~~~~~~~~ W.P.(C) No.37477 of 2009 ~~~~~~~~~~~~~~~~~ Dated this the 21st day of June 2010 J U D G M E N T This writ petition is in challenge of Ext.P9, order dated 25.11.2009 on I.A.No.597 of 2009 in O.S.No.144 of 2008 of the Court of learned Sub Judge, Tirur. 2. Respondent filed the suit for partition of 6 items scheduled in the plaint of which, there is no dispute regarding partibility of item No.3. Partibility of other items are disputed by petitioner contending that it is his self acquired property. There is also no dispute that there are rented buildings in item Nos.1, 4 and 5. In the course of the suit learned Sub Judge appointed petitioner as Receiver for the property with direction to submit quarterly statements as to the income derived from the said property. Accordingly, petitioner has submitted statements. W.P.(C) No.37477 of 2009 : 2 : Respondent was not satisfied with the correctness of the statements and he claimed that more amounts than mentioned in the statements has been collected by petitioner by way of rent from the buildings situated therein item Nos.1, 4 and 5. To prove that contention, respondent filed I.A.No.597 of 2009 to direct the bank of petitioner to cause production of extracts of his account. That application was resisted by petitioner. Learned Sub Judge vide Ext.P9, order has allowed the application and directed the banker of petitioner to produce extracts of account of petitioner in that bank. 3. Learned counsel for petitioner contends that as per Sec.5 of Bankers' Book Evidence Act, 1891 (for short, “the Act”) except for special cause, court could not have summoned the extracts. Learned counsel also placed reliance on page 95 of Halsbury's Laws of England relating to summoning of the accounts of a party to the proceedings. According to the learned counsel, in the W.P.(C) No.37477 of 2009 : 3 : absence of any other evidence to show that petitioner has received rent from the buildings in item Nos.1, 4 and 5 more than what is stated in the statements submitted to the court below, learned Sub Judge was not justified in summoning of the extracts and thereby violating secrecy of his accounts. Learned counsel for respondent supported the order under challenge. 4. Learned counsel for petitioner has taken me through Sec.5 of the Act which according to learned counsel states that in the absence of special cause not even extract of the account could be summoned by the court. I am afraid, I cannot agree to the interpretation made by learned counsel to Sec.5 of the Act. On a reading that provision what is discernible is only that when an account can be proved by an extract as referred to therein in the absence of special cause the officer of the bank shall not be compelled to be a witness or to produce the book of account. In other words, special cause is needed not to summon the extract W.P.(C) No.37477 of 2009 : 4 : but the original book of account and the officer of the bank concerned. 5. But, merely for the reason that respondent has challenged correctness of entries in the statements submitted by petitioner as to the rent collected from the buildings in item Nos.1, 4 and 5, it is not necessary at this stage to summon the extract of the account book from the bank. One can understand if respondent has adduced some evidence regarding correctness of the statements submitted by petitioner. In such a situation, it is open to the court to summon the relevant extract of the account of petitioner. That stage has not come. Hence, the order under challenge cannot be sustained. But, I make it clear that on respondent adducing some evidence before learned Sub Judge that entries in the statement filed by petitioner are not correct, it will be open to the respondent to pursue his request vide I.A.No.597 of 2009 and for learned Sub Judge to direct production of extract of the relevant account. W.P.(C) No.37477 of 2009 : 5 : Resultantly, the writ petition is allowed and order under challenge is set aside. I.A.No.597 of 2009 is remitted to the court of learned Sub Judge to pass appropriate orders as circumstances warranted and in the light of the observations I have made above. THOMAS P. JOSEPH, JUDGE. Jvt