IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 6TH DECEMBER 2011 / 15TH AGRAHAYANA 1933 WP(C).No. 7813 of 2010(O) ------------------------- OS.23/2005 of SUB COURT, KASARAGOD .................... WRIT PETITIONERS: --------------- 1. ZAINABI, AGED 71 YRS,W/O.SHEIKH ABDULLA, R/AT A.K.R.HOUSE,HIDAYATH NAGAR,P.O.,UPPALA, MANGALAPPADY,KASARAGOD DISTRICT. 2. SHEIKH MUHAMMED IQBAL,AGED 48 YRS, S/O.SHEIKH ABDULLA, DO.... DO.... DO..... 3. S.MUMTAZ,AGED 46 YRS,D/O.SHEIKH ABDULLA, DO....DO....DO..... 4. FATHIMABI,AGED 44 YRS,D/O.SHEIKH ABDULLA DO.... DO.... DO...... 5. SHEIKH MUHAMMED ASHRAF,AGED 42 YEARS, S/O.SHEIKH ABDULLA,DO..... DO.... DO..... 6. SHEIKH MUHAMMED ASLAM,AGED 38 YRS, S/O.SHEIKH ABDULLA, DO.... DO.... DO...... 7. SHEIKH MUHAMMED RIYAZ ASHFAQ,AGED 36 YRS S/O.SHEIKH ABDULLA, DO.... DO.... DO... 8. ZAREENA,AGED 34,W/O.LATE RAFEEQ, DO..... DO...... DO...... BY ADV. SMT.R.PADMAKUMARI RESPONDENT(S): --------------- 1. DISTRICT COLLECTOR,KASARAGOD. 2. P.K.RAJU, SUB INSPECTOR OF POLICE, BEKAL POLICE STATION,P.O.,BEKAL,PALLIKERE VILLAGE, KASARAGOD. 3. MOHAMMED ISMAIL, POLICE CONSTABLE NO.1162 DRIVER,MANJESHWARAM POLICE STATION,P.O., MANJESHWARAM,KASARAGOD. 4. JAFFAR, KERALA ARMED POLICE CONSTABLE, KERALA ARMED RESERVE POLICE,CAMP AT PARAKKATTA.PO, VIDYANAGAR,KASARAGOD. ADV. SRI.T.G.RAJENDRAN FOR R2 & 3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 7813 of 2010 APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1 : TRUE COPY OF THE ORDER DTD 08.01.2010 IN I.A.849/09 IN O.S.NO.23/05 ON the FILE OF SUBORDINATE JUDGE, KASARAGOD EXHIBIT P2 : TRUE COPY OF THE WITNESS LIST AND AFFIDAVIT FILED BY THE PETITIONERS/PLAINTIFFS. EXHIBIT P3 : CARBON COPY OF THE ORDER IN I.A.NO.147/2010 DTD 19.02.2010 ON the FILE OF THE SUBORDINATE JUDGE, KASARAGOD RESPONDENT'S EXHIBITS: NIL /True Copy/ P.A to Judge THOMAS P. JOSEPH, J. ---------------------------------------- W.P(C).No.7813 of 2010 --------------------------------------- Dated this 06th day of December, 2011 JUDGMENT Ext.P3, order dated 19.02.2010 on I.A.No.147 of 2010 in O.S.No.23 of 2005 of the Court of learned Sub Judge, Kasaragod is under challenge. 2. The son of first petitioner who is the brother of petitioners 2 to 7 and husband of 8th petitioner, it is alleged died following assault at the hands of respondents 2 to 4. Petitioners claimed compensation from the respondents for the death of the deceased. Petitioners filed I.A.No.849 of 2009 to summon certain documents in proof of their case that the death was following assault by respondents 2 to 4. That application was dismissed by the learned Sub Judge. That was followed by Ext.P2, application – I.A.No.147 of 2010 to summon witnesses to cause production of documents. That application was dismissed by Ext.P3, order for the reason that it is filed at a belated stage and that no reason is stated in the affidavit. Ext.P3, order is under challenge. 3. It is contended by learned counsel that proof of documents and examination of witnesses as sought for in I.A.No.147 of 2010 is necessary to prove the case of petitioners. W.P(C).No.7813 of 2010 -: 2 :- Hence learned Sub Judge was not right in dismissing Ext.P2, application. 4. Learned Government Pleader appearing for the first respondent and learned counsel for respondents 2 and 3 (4th respondent remains absent even after service by publication) contended that there is no merit in Ext.P2, application, it does not state any reason for summoning the documents or the purpose sought to be achieved by such act and hence learned Sub Judge is correct in dismissing I.A.No.147 of 2010. 5. I have gone through Ext.P2, application and find that it is only an application to receive the witness list. There is no request to issue summons to the witnesses either to produce documents and/or to give evidence, nor do I find the purpose sought to be achieved by summoning the documents stated in Ext.P2, application. Hence I do not find reason to interfere with Ext.P3, order disallowing Ext.P2, application. 6. But the right of petitioners to examine witnesses and prove necessary documents has to be preserved. According to the petitioners, death of the deceased was due to assault by respondents 2 to 4. Petitioners certainly must get an opportunity to prove their case and if documents referred to in Ext.P2, W.P(C).No.7813 of 2010 -: 3 :- application are necessary, they must be given an opportunity to summon the relevant documents to prove the same. For the said purpose, it is open to the petitioners to file fresh application stating reasons. Resultantly this writ petition is disposed of as follows: (i) While no interference is required with Ext.P3, order it is made clear that notwithstanding the order on I.A.No.849 of 2009 and I.A.No.147 of 2010 it is open to the petitioners to file fresh application to summon witnesses/documents which are necessary and relevant for adjudication of the dispute involved. (ii) Petitioners may file fresh application stating reasons and the point sought to be proved by summoning documents and examining witnesses. (iii) If any such application is preferred learned Sub Judge shall consider the said application notwithstanding the order on I.A.No.849 of 2009 and I.A.No.147 of 2010 and pass appropriate orders as circumstances warranted. (THOMAS P. JOSEPH, JUDGE) Sbna/-