IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 9TH AUGUST 2011 / 18TH SRAVANA 1933 OP(C).No. 2571 of 2011(O) -------------------------------------- OS.NO. 449/2010 of PRL.MUNSIFF'S COURT, KOZHIKODE-I .................... PETITIONER -------------------- V.MUHAMMED ASLAM, AGED 29 YEARS, S/O.M.P.ABDUL KOYA, "MANAS", CHULLIYOD ROAD, P.O.CIVIL STATION, NEDUNGOTTOOR AMSOM DESOM, KOZHIKODE. BY ADV. SRI.K.M.FIROZ SMT.M.SHAJNA RESPONDENT(S): --------------------------- 1. AANCHALAN HAMSA, AGED 49 YEARS, S/O.AANCHALAN KUNHAVARAN HAJI, OLAKKARA AMSOM, KOMANA DESOM, THIRURANGADI TALUK, MALAPPURAM DISTRICT.PIN-676 306 2. K.C.NOUSHAD ALI, AGED 41 YESRS, S/O.ASSAINAR HAJI, KANAYANNOOR AMSOM, DESOM, KANNUR TALUK, KANNUR DISTRICT.PIN-679 125 3. K.C.MUHAMMED RAFI, AGED 38 YEARS, S/O.ASSAINAR HAJI, KANAYANNOOR AMSOM, DESOM, KANNUR TALUK, KANNUR DISTIRCT.PIN-679 125 ADV. SRI.A.RANJITH NARAYANAN SRI.SUJITH P.SURENDRAN SMT.A.SIMI SRI.JACOB.P.ALEX THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 09/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts OP(C)NO.2571/2011 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE PLAINT IN OS NO.449/2010 ON THE FILES OF THE PRINCIPAL MUNSIFF'S COURT-I, KOZHIKODE. P2 COPY OF THE WRITTEN STATEMENT IN OS NO.449/2010 ON THE FILES OF THE PRINCIPAL MUNSIFF'S COURT-I, KOZHIKODE. P3 COPY OF THE AFFIDAVIT DATED 4/9/2010 SUBMITTED BY THE DEFENDANT ALONG WITH IA NO.3004 OF 2010 IN OS NO.449/2010. P4 COPY OF THE COUNTER SUBMITTED BY THE PLAINTIFF IN IA NO.3004 OF 2010 IN OS NO.449/2010. P5 COPY OF THE AFFIDAVIT DATED 27/11/2010 SUBMITTED BY THE DEFENDANT ALONG WITH IA NO.3979 OF 2010 IN OS NO.449/2010. P6 COPY OF THE BOARDING PASS DATED 16/12/2007 OF GOLDEN TRAVELS. P7 COPY OF THE CASH RECEIPT DATED 16/12/2007 OF GOLDEN TRAVELS. P8 COPY OF THE ORDER DATED 19/3/2011 IN IA NO.3004 OF 2010 IN OS NO.449/2010 P9 COPY OF THE ORDER DATED 19/3/2011 IN IA NO.3979 OF 2010 IN OS NO.449/2010 RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.S.TO.JUDGE sts THOMAS P.JOSEPH, J. ==================================== O.P(C) No.2571 of 2011 ==================================== Dated this the 09th day of August, 2011 J U D G M E N T Defendant in O.S. No.449 of 2010 of the court of learned Principal Munsiff-I, Kozhikode is the petitioner before me challenging Exts.P8 and P9, orders refusing to issue summons as prayed for in I.A. No.3004 of 2010 and to send the disputed document to the Expert as prayed for in I.A. No.3979 of 2010. 2. Respondents filed the suit for a decree for mandatory injunction to evict petitioner from the suit property claiming that petitioner is a licensee and that the period of licence expired on 01.7.2010. Along with the plaint respondents produced a copy of the affidavit said to have been sworn by the petitioner in connection with RCA No.175 of 2006 concerning an adjacent room belonging to the respondents. It is said that petitioner handed over a xerox copy of a licence agreement allegedly executed between him and the respondents to the Advocate Commissioner who inspected the property involved in RCA No.175 of 2006. According to the petitioner, he has not handed over any such xerox copy to the Advocate Commissioner and on the day he said O.P(C) No.2571 of 2011 -: 2 :- to have executed the document, he was at Bangalore. To prove that, he wanted to summon certain documents from a Hotel at Bangalore and filed I.A. No.3004 of 2010. To send the copy of affidavit produced by the respondents along with the plaint to the Expert for opinion, he filed I.A. No.3979 of 2010. Both the applications were dismissed as per Exts.P8 and P9, orders. It is contended by leaned counsel that having regard to the contentions raised it was necessary to summon the relevant documents as prayed for in I.A. No.3004 of 2010 and send the disputed affidavit to the Expert as prayed for in I.A. No.3979 of 2010. Learned counsel for respondents submitted that since the affidavit is attested by a lawyer it is not necessary to send the document to the Expert for opinion. 3. Having heard counsel on both sides it appears to me that petitioner must be given an opportunity to adduce evidence in support of his contention. There is no reason why the documents requested to be summoned vide I.A. No.3004 of 2010 shall not be summoned. Hence I.A. No.3004 of 2010 can be allowed subject to the rider that the documents are to be proved in the manner provided under law. If any register or such other document maintained in the Hotel is to be proved, on production O.P(C) No.2571 of 2011 -: 3 :- of such documents in court, its photocopy attested by the Chief Ministerial Officer or Notary Public is to be marked in evidence after comparing with the original(s) and after examination of the witness concerned is over such originals shall be returned to him on getting proper acknowledgment to be maintained in court. 4. So far as sending copy of the affidavit produced along the plaint to the Expert is concerned it is not necessary that straight way that document must be sent to the Expert. It is open to both sides to adduce evidence regarding the contention of petitioner swearing that affidavit and after recording evidence if it is found, necessary it is open to the learned Munsiff to send that document to the Expert for opinion as to whether petitioner has signed it. Hence I.A. No.3979 of 2010 can be kept alive. Resultantly, Original Petition is allowed in the following lines: (a) Exhibit P8, order dismissing I.A. No.3004 of 2010 is set aside and that application is allowed. Leaned Munsiff shall summon the documents requested for in I.A. No.3004 of 2010. O.P(C) No.2571 of 2011 -: 4 :- (b) Exhibit P9, order dismissing I.A. No.3979 of 2010 is set aside and that application is remitted to the learned Munsiff for appropriate decision as is found necessary after evidence is recorded. THOMAS P. JOSEPH, JUDGE. vsv