IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 15TH JULY 2008 / 24TH ASHADHA 1930 WP(C).No. 12336 of 2008(R) -------------------------- OS.23/1992 of I ADDL.SUB COURT, THRISSUR .................... PETITIONER: ------------ K.K.GOVINDAN, S/O.LATE K.V.KRISHNAN, KARATTUPARAMBIL HOUSE, VELLANIKKARA POST, CHIRAKKAKODE DESOM, THRISSUR TALUK REPRESENTED BY HIS POWER OF ATTORNEY HOLDER K.G.SUNIL KRISHNAN. BY ADV. SRI.N.N.SUGUNAPALAN (SR.) SRI.S.SUJIN RESPONDENT: --------------- K.G.PREMSANKAR, S/O.KARATTUPARAMBIL GOVINDAN, "ASWATHY", G.C.NAGAR, PEROORKADA VILLAGE, THIRUVANANTHAPURAM TALUK. BY ADV. SRI.P.C.SASIDHARAN FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX Petitioner's Exhibits:- Ext.P1:- True copy of the plaint O.S.23/1992 on the file of the Sub Court, Thrissur. Ext.P2:- True copy of the written statement filed by the petitioner in O.S.23/1992 on the file of the Sub Court,Thrissur. Ext.P3:- True copy of the judgment in A.S.No.295/1996 dated 5.10.2006 of this Hon'ble Court. Ext.P4:- True copy of I.A.No.2606/08 filed by the petitioner in O.S.No.23/1992 on the file of the Sub Court, Thrissur. Ext.P5:- True copy of order dated 28.3.2008 in I.A.No.2606/08 in O.S.No.23/1992 of the Sub Court, Thrissur. Ext.P6:- True copy of relevant pages of the deposition of the respondent in O.S.No.23/1992 before the Sub Court, Thrissur. Respondents Exhibits:- Ext.R1(a) - A true copy of Advocate Commission Report. Ext.R1(b) - A true copy of affidavit filed by the Asst. Engineer before the Addl.Sub Judge, Trichur dt. 18.3.2008. P.S. To Judge M.SASIDHARAN NAMBIAR,J. =========================== W.P.(C) NO.12336 OF 2008 =========================== Dated this the 15th day of July, 2008 JUDGMENT This petition is filed under Article 227 of the Constitution of India to quash Ext.P5 order whereunder I.A.2606/2008 an application to issue summons to Assistant Executive Engineer to produce records was dismissed. 2. Learned senior counsel appearing for petitioner and learned counsel appearing for respondent were heard. 3. Learned senior counsel pointed out that for producing the said documents Assistant Engineer was originally summoned and he filed an affidavit that the documents are not in his office and therefore the Assistant Executive Engineer is to be summoned to produce the documents and as provided under the order of remand, burden is on the petitioner to prove existence of the documents and in such circumstance, the petition should have been W.P.(c) 12336/08 2 allowed. 4. Learned counsel appearing for respondent pointed out that Ext.R1(b) the affidavit filed by the Assistant Engineer in answer to the summons originally issued clearly shows that he had made a search not only in his office and also at the office of his superiors and no records are available and in such circumstance, the petition is only an abuse of process of court and was rightly dismissed under Ext.P5. 5. On hearing the senior counsel and the learned counsel and on going through Ext.R1(b) affidavit, I do not find any illegality in Ext.P5 order warranting interference. The affidavit filed by the Assistant Engineer establish that the documents sought to be produced by summoning Assistant Executive Engineer are not available even in the office of the Assistant Executive Engineer as Assistant Engineer has made search there also. In such circumstances, petition is dismissed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006