IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 7TH SEPTEMBER 2009 / 16TH BHADRA 1931 WP(C).No. 35575 of 2008(I) ------------------------------------- AGAINST THE ORDER DATED 18/11/2008 IN IA 2948/08 IN OS.918/1988 of ADDL. MUNSIFF'S COURT, KOTTAYAM .................... PETITIONER/PLAINTIFF: ---------------------------------- ELIZABETH GEETHA IYPE, VATTAKUNNEL HOUSE NATTASHERRY KARA, NOW RESIDING AT ANJILIPARMPIL HOUSE, MANARKAD KARA, KOTTAYAM. BY ADV. MR.RINNY STEPHEN CHAMAPARAMPIL RESPONDENTS/DEFENDANTS: ------------------------------------------- 1. KOTTAYIM DIST. EX. SERVICE MEN WELFARE CO-OPERATIVE SOCIETY LTD., NO. 2675, PULIMOOD JUNCTION, KOTTAYAM, REP. BY ITS PRESIDENT, RAJASHEKARAN NAIR, KOORAPPALLIL HOUSE, ERAMALLOR, PUTHUPALLY P.O. 2. P.V. CHACKO, SECRETARY, KOTTAYAM DIST. EX. SERVICE MEN WELFARE CO-OPERATIVE SOCIETY LTD., RESIDING AT PANAPARMBIL, VELLOR KARA, PAMPADY VILLAGE. R1 BY ADV. MR.P.K.RAVISANKAR . THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/09/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 35575/2008-I APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE JUDGMENT D.13/02/08 IN RSA.1114/2006 OF THIS HONOURABLE COURT. EXT.P2: COPY OF THE I.A.2948/2008 IN O.S.918/88 OF ADDL. MUNSIFF'S COURT, KOTTAYAM. EXT.P3: COPY OF THE LEGAL NOTICE DATED 12/04/2006 ISSUED TO THE 1ST RESPONDENT SOCIETY. EXT.P4: COPY OF THE LETTER DATED 23/04/2008 ISSUED BY THE PUBLIC INFORMATION OFFICER OF KOTTAYAM MUNICIPALITY. EXT.P5: COPY OF THE COUNTER DATED 13/11/2008 FILED BY THE RESPONDENTS TO I.A.2948/2008. EXT.P6: COPY OF THE ORDER DATED 18/11/2008 IN I.A.2948/2008 IN O.S.918/88 OF ADDL. MUNSIFF'S COURT, KOTTAYAM. EXT.P7: COPY OF THE I.A. NO.1011 OF 2008 FILED BY THE PETITIONER BEFORE THE ADDL. DISTRICT COURT, KOTTAYAM. EXT.P8: COPY OF THE PETITION FILED BY THE WRIT PETITIONER BEFORE THE LOWER APPELLATE COURT TO FRAME ADDITIONAL ISSUES. EXT.P9: COPY OF THE DEPOSITION OF THE 2ND RESPONDENT IN O.S. NO.918 OF 1988. RESPONDENT'S EXHIBITS: EXT.R1(a): COPY OF THE ORDER DATED 30/06/2008 IN I.A.1011/2008 IN A.S.90/1993 ON THE FILE OF ADDL. DISTRICT COURT, KOTTAYAM. //TRUE COPY// P.A. TO JUDGE rs. S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.35575 of 2008 - I --------------------------------- Dated this the 7th day of September, 2009 J U D G M E N T Writ petition is filed seeking the following reliefs: “i) To set aside Ext.P6 order dated 18.11.2008 in I.A.No.2948/2008 in O.S.No.918/1988 of the Additional Munsiff Court, Kottayam. ii) To allow I.A.No.2948/2008 in O.S.No.918/2008 of the Additional Munsiff Cdourt, Kottayam. iii) To direct Additional District Court, Kottayam, where the records of O.S.No.918/1988 of the Additional Munsiff Court, Kottayam are now available in A.S.No.90/1993, to accept the documents mentioned in Ext.P2 application as additional evidence or to remit the case tot he Additional Munsiff Court, Kottayam for enabling the Trial Court to accept the documents mentioned in Ext.P2 application as additional evidence”. 2. Petitioner is the plaintiff is O.S.No.918 of 1988 on the file of the Munsiff Court, Kottayam. Suit is one for recovery of possession with arrears of rent. Suit after trial was dismissed by the trial court. Plaintiff preferred an appeal. The first appellate W.P.(C).No.35575 of 2008 - I 2 court granted a decree only in respect of arrears of rent negativing the claim of recovery of possession. A second appeal as R.S.A.No.1114 of 2006 was filed before this Court which was disposed of by judgment dated 13.2.2008. The decree and judgment passed by the first appellate court was set aside and the case was remitted for fresh consideration granting liberty to both sides to file application for amending the pleadings and adducing necessary evidence. Pursuant to such remand, petitioner/plaintiff moved an application for raising additional issues, and accordingly, after hearing both sides, two additional issues were raised for consideration. On another application moved by the plaintiff recording of additional evidence was directed to be taken by the trial court and the records were sent over to that court. Plaintiff thereupon moved an application before the trial court for a direction/order to the defendant to produce counter foils of some receipts and also Minute books of the defendant society from 2002 till the date of filing of the application. Objections were filed by the defendant contending W.P.(C).No.35575 of 2008 - I 3 that no amount was collected from persons by the society in respect of which counter foil receipts were sought for and that it is prepared to produce copies of the minute books subject to deposit of the cost for taking such copies by the plaintiff. However, the court below after hearing the counsel on both sides dismissed the application by Ext.P6 order. Propriety and correctness of Ext.P6 order is challenged in the writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 3. I heard the counsel on both sides. 4. Learned counsel for the petitioner inviting my attention to the objections filed to the application by the defendant submitted that no objection had been raised in producing the copies of the minutes books. Ext.P5 is the copy of the objections. It is true, the defendant society has contended that the counter foils of the receipts could not be produced since no amount was collected from persons named by the plaintiff in Ext.P2 application. But there was no objection in producing W.P.(C).No.35575 of 2008 - I 4 copies of minute books subject to meeting of expenses for taking copies by plaintiff. Learned Munsiff, it is seen, has dismissed Ext.P2 application for the reason it was highly belated as the entire evidence was already recorded. When practically no objection was raised by the defendants society in producing the minutes books, I find the request made by the plaintiff should have been favourably considered. So far as nonproduction of the counter foil of receipts, the defendant society can file an affidavit if it has not collected any amount from the persons named in the application. Taking note the additional issue framed in the suit, I find the summoning of the documents sought for by the plaintiff may have some force in determining those issues. That being so, setting aside Ext.P6 order, I direct the court below to pass appropriate orders on Ext.P2 application in accordance with law. No doubt, minutes book of the society, particularly for the current year, may be required for the defendant society from time to time as stated in its objections. The court below shall take appropriate steps to see that copies of the minutes book are taken at the W.P.(C).No.35575 of 2008 - I 5 expense of the plaintiffs and after verification the minutes books are returned to the society without delay. The court may also fix the amount to be deposited for taking copies of the minutes book. Subject to the above direction, the writ petition is disposed. S.S.SATHEESACHANDRAN, JUDGE. bkn/-