IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 17TH JUNE 2010 / 27TH JYAISTHA 1932 WP(C).No. 4389 of 2010(O) ------------------------- IA NO.11/2009 IN AS.5/2009 of DISTRICT COURT,THODUPUZHA OS.118/2006 of MUNI-MAGI COURT, DEVIKULAM .................... PETITIONER(S): --------------- 1. E.J.SEBASTIAN, AGED 80 YEARS, S/O.CHANDY ELANJIMATTATHIL HOUSE, PUTHUPALLIPRAM, TRIKKAKARA NORTH VILLAGE, GODOWN ROAD, EDAPALLY TOLL, KOCHI 682 024, REPRESENTED BY SON AND POWER OF ATTORNEY HOLDER REJI SEBASTIAN. 2. ANNAKUTTY SEBASTIAN, AGED 70 YEARS, W/O.E.J.SEBASTIAN, ELANJIMATTATHIL HOUSE, PUTHUPALLIPRAM, TRIKKAKARA NORTH VILLAGE, GODOWN ROAD, EDAPALLY TOLL, KOCHI 682 024, REP.BY SON AND POWER OF ATTORNEY HOLDER REJI SEBASTIAN. BY ADV. SRI.M.P.RAMNATH SRI.P.RAJESH(KOTTAKKAL) RESPONDENT(S): --------------- 1. M.M.SEBASTIAN, S/O.MATHEW, WORKER, MOOLANVEETIL, VILAKK PART, CHINNAKANAL VILLAGE, UDUMBANCHOLA TALUK. 2. ESKI, S/O.VELUCHAMI WORKER, VILAK, CHINAKANAL VILLAGE, UDUMBANCHOLA TALUK. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.4389/2010 APPENDIX PETITIONERS' EXHIBITS: EXT.P1 TRUE PHOTOCOPY OF THE PLAINT IN OS 118/2006 OF MUNSIFF COURT, DEVICOLAM EXT.P2 TRUE PHOTOCOPY OF THE WRITTEN STATEMENT IN OS 118/2006 OPF MUNSIFF COURT, DEVICOLAM EXT.P3 TRUE PHOTOCOPY OF THE INTERIM INJUNCTION ORDER AS ISSUED FROM COURT IN IA 854/2006 IN OS 118/2006 OF MUNSIFF COURT, DEVICOLAM EXT.P4 TRUE PHOTOSTAT COPY OF THE NOTARIZED COPY OF AGREEMENT DATED 10.9.1969 EXECUTED BY DEVIAPPAN AND NAGAIYYA IN FAVOUR OF PLAINTIFFS EXT.P5 TRUE PHOTOCOPY OF THE CERTIFIED READABLE COPY ISSUED FROM MUNSIFF COURT, DEVICOLAM OF THE AGREEMENT DATED 10.09.1969 (EXT.P4 HEREIN) EXT.P6 TRUE PHOTOCOPY OF JUDGMENT DATED 8.7.2008 OF THIS COURT IN WP(C) 1853/2008 EXT.P7 TRUE PHOTOSTAT COPY OF JUDGMENT DATED 21.11.2008 IN OS 118/2006 OF MUNSIFF COURT, DEVICOLAM EXT.P8 TRUE PHOTOCOPY OF THE DECREE DATED 21.11.2008 IN OS 118/2006 OF MUNSIFF COURT, DEVICOLAM EXT.P9 TRUE PHOTOCOPY OF MEMORANDUM OF APPEAL AS 5/2009 OF DISTRICT COURT, THODUPUZHA EXT.P10 TRUE PHOTOCOPY OF THE STAY PETITION IA 11/2009 IN AS 5/2009 OF DISTRICT COURT, THODUPUZHA EXT.P11 TRUE PHOTOCOPY OF THE ORDER DATED 21.10.2009 IN IA 11/2009 IN AS 5/2009 OF DISTRICT COURT, THODUPUZHA EXT.P12 TRUE PHOTOSTAT COPY OF POWER OF ATTORNEY NO.499/2006 SRO, EDAPPALLY EXECUTED BY PETITIONERS. //TRUE COPY// THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.4389 of 2010 -------------------------------------- Dated this the 17th day of June, 2010. JUDGMENT Petitioners approached the court of learned Munsiff, Devikulam with a suit on the belief that they will get a decree for prohibitory injunction against respondents. Respondents resisted the suit on the hope that their contention will be accepted and suit will be dismissed. With that belief and hope both sides adduced oral and documentary evidence. Learned Munsiff vide Ext.P7, judgment held that petitioners are not entitled to the reliefs prayed for and consequently dismissed the suit. The matter did not end there. Learned Munsiff was of the view that parties as well as their witnesses are guilty of perjury and forgery in that false evidence was let in and forged documents were made use of in the evidence. Learned Munsiff directed that an enquiry be conducted against the parties and their witnesses. Learned Munsiff ordered that Exts.A1, B1 and B2 are impounded and will be destroyed as per the rules relating to destruction of records. It was directed that parties and witnesses against whom that direction was issued shall appear before the learned Munsiff on 12.01.2009 to show cause why they shall not be proceeded against. Petitioners challenged dismissal of the suit before the learned District Judge in A.S.No.5 of 2009 and moved I.A.No.11 of 2009 for stay of direction relating to enquiry into the alleged perjury and impounding of the document. Learned District Judge after hearing both sides felt that prima facie the trial court finding is well-founded and refused WP(C) No.4389/2010 2 to order stay. That order (Ext.P11) is under challenge in this Writ Petition. This Court while admitting the Writ Petition granted interim stay which is in force now also. Learned counsel for petitioners contended that in so far as the appeal has been taken on file and the matter is pending consideration of learned District Judge were parties have the opportunity to show that no question of perjury or forgery is involved and seek reversal of the direction issued by the learned Munsiff to conduct enquiry, learned District Judge ought to have stayed the direction for conducting the enquiry until disposal of the appeal. It is the contention of the learned counsel that the very fact that appeal was taken on file indicated that it is not a case where the appeal could be dismissed as without any merit under Order 41 Rule 11 of the Code of Civil Procedure. 2. Though notice was served on the respondents, there is no appearance for them. 3. I have gone through Ext.P7, judgment of the learned Munsiff and Ext.P11, order which is under challenge in this Writ Petition. For the time being I am not at the question whether learned Munsiff was legally and factually correct in arriving at the conclusion that parties and their witnessess have committed perjury or that Exts.A2, B1 and B2 are the result of forgery. Those matters are under consideration before the learned District Judge in that the appeal has been taken on file. The parties have the opportunity to impress the learned District Judge that finding entered by the learned Munsiff is not correct and WP(C) No.4389/2010 3 request for reversal of that finding and direction for enquiry, and in such a situation it was only appropriate that further proceedings pursuant to Ext.P7, judgment of learned Munsiff is kept in abeyance till the appeal is disposed of. I find no reason why the request of petitioners to that effect should be rejected. Resultantly, this Writ Petition is allowed in the following lines: i. Ext.P11, order is set aside. ii. There will be a stay of further proceedings pursuant to the direction issued by learned Munsiff to conduct enquiry into alleged perjury and forgery, impounding and destruction of the documents, in respect of the petitioners, respondents and witnessess involved until disposal of the appeal. iii. The fate of the direction of learned Munsiff and the enquiry to be conducted will depend on the finding and direction that the learned District Judge makes in A.S.No.5 of 2009. THOMAS P.JOSEPH, Judge. cks