Kerala High Court
Leela U.K vs Anil Jayadev Rao on 19 January, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR
TUESDAY, THE 19TH DAY OF JANUARY 2021 / 29TH POUSHA, 1942
OP(C).No.1600 OF 2017
AGAINST THE ORDER DATED 01.04.2016 IN I.A.NOS.838, 832, 833,
834, 835, 836 & 837/2017 IN O.S.NO.43/2016 OF IST
ADDITIONAL SUB COURT, KOZHIKODE
PETITIONERS/ PETITIONERS/ PLAINTIFFS:
1 LEELA U.K.,
AGED 75 YEARS, W/O. GOPINATHAN NAIR,
RESIDING AT PRAYAGA (H), PO. WEST HILL,
KOZHIKODE TALUK, PIN-673005
2 SREEKANTH U.K,
AGED 35 YEARS, S/O. T.GANGADHARA NAIR,
CHELANGAT HOUSE 47/467 NEAR CIVIL STATION,
CIVIL STATION PO., KOZHIKODE TALUK PIN-673020
3 T.GANGADHARAN NAIR,
AGE 70 YEARS, S/O. NARAYANAN NAIRGOVIND VINTAGE
PALACE,
AYYANTHOLTHRISSUR
BY ADVS.SRI.A.SUDHI VASUDEVAN (SR.)
SRI.JOSE JONES JOSEPH
RESPONDENTS/ RESPONDENTS/DEFENDANTS:
1 ANIL JAYADEV RAO,
AGED 32 YEARS,
S/O. JAYADEV RAO,
SWARGAMADAM (H),
KASABA AMSOM, DESOM PO.,
CHALAPPURAMKOZHIKODE TALUK, PIN-673002
2 MANOHAR.S,
AGED 60 YEARS,
RESIDING AT M7/17MALAPARAMBA HOUSING COLONY
P.O.MALAPARAMBA,
CALICUT PIN-673009
3 DEPUTY GENERAL MANAGER,
SOUTH INDIAN BANK OFFICE OF DEPUTY GENERAL,
MANAGERDOOR NO.7/1164,
HAPPY TOWERS VAIKO MOHAMMAD BASHEER ROAD,
O.P.(C)No.1600/2017
-:2:-
MANANCHIRA
4 CHIEF MANAGER AUTHORIZED OFFICER (SUPPL)
THE SOUTH BANK REGIONAL OFFICERS,VAIKAM
MOHAMMED BASHEER ROAD,
HAPPY TOWERS MANANCHRA
KOZHIKODE PIN-673001
5 THE MANAGER (SUPPL),
SOUTH INDIAN BANK MAVOOR ROAD BRANCH,
KOZHIKODE PIN-673004
6 THE SUB REGISTRAR (SUPPL),
SUB REGISTRAR OFFICE, WESTHILL
KOZHIKODE PIN-673005
R3-5 BY SRI.GEORGE VARGHESE,SC,SOUTH INDIAN
BANK
R6 BY SR.GOVERNMENT PLEADER SRI. JOHNSON M.I.
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON
19.01.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
O.P.(C)No.1600/2017
-:3:-
Dated this the 19th day of January,2021
J U D G M E N T
Exts.P16 to P22 orders passed by Ist
Additional Sub Court, Kozhikode, dismissing
Exts.P6 to P12 petitions, are challenged by the
aggrieved plaintiffs in O.S.No.43/2016.
2. The suit was filed for declaring document
executed by first plaintiff in favour of the
second defendant and by second defendant in favour
of the first defendant are sham and for
consequential declaration of title over plaint
schedule properties.
3. Exts.P6 to P12 are petitions filed by
plaintiffs in the suit demanding production of
documents in the possession of witnesses and some
of the defendants in the suit. The court below
dismissed all these applications for the manifest
reason that they were instituted belatedly after
the suit was posted in the list for trial. The
contentions of parties on merits were not
considered.
4. I heard the learned counsel for the
petitioners as well as respondent Nos.3 to 6.
O.P.(C)No.1600/2017
5. The defendants who filed counter opposing
the applications did not appear in this proceeding
filed under Article 227 of the Constitution of
India.
6. After hearing both sides, I am of the
opinion that the documents sought to be produced
in the suit are relevant for the adjudication of
issues involved in the suit. Nobody has a case
that the documents are irrelevant for decision of
the suit. So far as production of documents from
the possession of witnesses is concerned, their
availability could be known only when witnesses
appear and make their statements.
7. The learned counsel appearing for
respondent Nos.3 to 6 referring to Ext.P9
[I.A.No.834/2017] submitted that documents
referred to therein are not in their possession.
But I do not find that any counter has been filed
denying custody or possession of these documents.
8. The learned counsel for the petitioners
pointed out that in Ext.P7[I.A.No.832/2017], there
is mistake in the mention of bank account number
and the correct number was stated in the plaint.
So also, it was pointed that in Ext.P11, witness
O.P.(C)No.1600/2017
schedule dated 18.03.2017, the name of the bank
has been wrongly mentioned. These are all matters
which could be addressed before the court below at
the time when the summons is sought to be taken to
the witnesses.
9. Having heard both sides, I am of the
opinion that the court below failed to appreciate
the contentions of parties on merits and dismissed
all the applications mechanically. The order
cannot be supported under law and all the impugned
orders are liable to be set aside.
In the result, original petition is allowed
and Exts.P16 to P22 orders are set aside. Exts.P6
to P12 applications are allowed. The court below
will issue summons to the witnesses for production
of documents and order the concerned defendant in
possession to produce the relevant records subject
to what is said below.
It is made clear that the court below shall
hear the fifth respondent as to the alleged
possession of the documents mentioned in
I.A.No.834/2017 before he is called upon to
produce the said documents. The suit being of the
year 2016, there shall be a direction to the court
O.P.(C)No.1600/2017
below to dispose of the suit itself within a
period of three months from the date of receipt of
a certified copy of this judgment.
All pending interlocutory applications will
stand closed.
Sd/-
T.V.ANILKUMAR,JUDGE
DST //True copy/
P.A.To Judge
O.P.(C)No.1600/2017
APPENDIX
PETITIONERS' EXHIBITS:
EXHIBIT P1: A TRUE COPY OF THE AMENDED PLAINT IN
O.S.NO.43/2016 ON THE FILE OF SUB COURT
KOZHIKODE
EXHIBIT P1(A): A TRUE COPY OF THE WRITTEN STATEMENT
DATED 04.02.2017 FILED IN THE SAID SUIT
BY THE 5TH DEFENDANT WHO IS THE MANAGER
OF SOUTH INDIAN BANK
EXHIBIT P2: A TRUE COPY OF THE JUDGMENT DATED
24.6.2016 OF THIS HON'BLE COURT IN
WP(C)NO.21479/2016
EXHIBIT P3: A TRUE COPY OF THE JUDGMENT DATED
6.01.2017 IN WP(C) NO.21479/2016 OF
THIS HON'BLE COURT
EXHIBIT P4: A TRUE COPY OF THE ORDER DATED
20.12.2016 IN OP (C)NO.2977/2016 ON THE
FILE OF THIS HON'BLE COURT
EXHIBIT P5: A TRUE COPY OF THE AFFIDAVIT DATED
06.02.2017 SWORN TO THE 2ND RESPONDENT
IN ANSWER TO THE INTERROGATORIES
PURSUANT TO THE ORDER PASSED BY THE 1ST
ADDITIONAL SUB COURT, KOZHIKODE IN IA
NO.4469/2016 IN OS 43/2016
EXHIBIT P6: A TRUE COPY OF IA NO.838/2016 AND THE
ACCOMPANYING AFFIDAVIT DATED 18.03.2017
FILED BY THE PETITIONERS IN OS 43/2016
BEFORE THE 1ST ADDITIONAL SUB COURT
KOZHIKODE
EXHIBIT P6(A): A TRUE COPY OF THE COUNTER DATED
25.03.2017 FILED BY THE 1ST RESPONDENT
IN IA NO.838/2017 IN OS 43/2016
EXHIBIT P7: A TRUE COPY OF THE IA NO.832/2017 AND
THE ACCOMPANYING AFFIDAVIT DATED
18.03.2017 FILED BY THE PETITIONERS IN
OS 43/2016 BEFORE THE 1ST ADDITIONAL
SUB COURT KOZHIKODE
EXHIBIT P7(A): A TRUE COPY OF THE COUNTER DATED
O.P.(C)No.1600/2017
25.03.2017 FILED BY THE 1ST RESPONDENT
IN IA NO.832/2017 IN OS NO.43/2016
EXHIBIT P8: A TRUE COPY OF IA NO.833/2017 AND THE
ACCOMPANYING AFFIDAVIT DATED 18.03.2017
FILED BY THE PETITIONERS IN OS
NO.43/2016 BEFORE THE 1ST ADDITIONAL
SUB COURT KOZHIKODE
EXHIBIT P8(A): A TRUE COPY OF THE COUNTER DATED
25.3.2017 FILED BY THE 1ST RESPONDENT
IN IA NO.833/2017 IN OS 43/2016
EXHIBIT P9: A TRUE COPY OF THE IA NO.834/2017 AND
THE ACCOMPANYING AFFIDAVIT DATED
18.03.2017 FILED BY THE PETITIONERS IN
OS 43/2016 BEFORE THE 1ST ADDITIONAL
SUB COURT KOZHIKODE
EXHIBIT P9(A): A TRUE COPY OF THE COUNTER DATED
25.03.2017 FILED BY THE 1ST RESPONDENT
IN IA NO.834/2017 IN OS 43/2016
EXHIBIT P10: A TRUE COPY OF THE IA NO.837/2017 AND
ACCOMPANYING AFFIDAVIT DATED 18.03.2017
FILED BY THE PETITIONERS IN OS 43/2016
BEFORE THE 1ST ADDITIONAL SUB COURT
KOZHIKODE
EXHIBIT P10(A): A TRUE COPY OF THE COUNTER DATED
25.03.2017 FILED BY THE 1ST RESPONDENT
IN IA NO.837/2017IN OS 43/2016
EXHIBIT P11: A TRUE COPY OF THE IA NO.835/2017 AND
THE ACCOMPANYING AFFIDAVIT DATED
18.03.2017 FILED BY THE PETITIONERS IN
OS 43/2016 BEFORE THE 1ST ADDITIONAL
SUB COURT KOZHIKODE
EXHIBIT P11(A): A TRUE COPY OF THE COUNTER DATED
25.03.2017 FILED BY THE 1ST RESPONDENT
IA NO.835/2017 IN OS 43/2016
EXHIBIT P12: A TRUE COPY OF THE IA NO.836/2017 AND
THE ACCOMPANYING AFFIDAVIT DATED
18.03.2017 FILED BY THE PETITIONERS IN
OS 43/2016 BEFORE THE 1ST ADDITIONAL
SUB COURT KOZHIKODE
O.P.(C)No.1600/2017
EXHIBIT P12(A): A TRUE COPY OF THE COUNTER DATED
25.03.2017 FILED BY THE 1ST RESPONDENT
IN IA NO.836/2017 IN OS 43/2016
EXHIBIT P13: A TRUE COPY OF THE CHEQUE DATED
20.11.2016 DRAWN BY THE 2ND PETITIONER
IN THE NAME OF THE 1ST RESPONDENT
EXHIBIT P14: A TRUE COPY OF THE CHEQUE OF AXIS BANK
LTD BEARING NO.599784 DATED 27.07.2011
DRAWN BY THE 2ND RESPONDENT IN THE NAME
OF THE 2ND PETITIONER
EXHIBIT P15: A TRUE COPY OF THE CHEQUE OF AXIS BANK
LTD BEARING NO.261420 DATED 27.07.2011
ISSUED BY THE 2ND RESPONDENT
EXHIBIT P16: A TRUE COPY OF THE ORDER DATED
01.04.2017 IN IA NO.838/2017 IN OS
43/2016, ON THE FILE OF THE 1ST
ADDITIONAL SUBORDINATE COURT, KOZHIKODE
EXHIBIT P17: A TRUE COPY OF THE DATED 01.04.2017 IN
IA NO.832/2017 IN OS 43/2016, ON THE
FILE OF THE 1ST ADDITIONAL SUBORDINATE
COURT, KOZHIKODE
EXHIBIT P18: A TRUE COPY OF THE ORDER DATED
01.04.2017 IN I.A.NO.833/2017 IN OS
NO.43/2016 ON THE FILE OF THE 1ST
ADDITIONAL SUBORDINATE COURT, KOZHIKODE
EXHIBIT P19: A TRUE COPY OF THE ORDER DATED
01.04.2017 IN IA NO.834/2017 IN OS
43/2016, ON THE FILE OF THE 1ST
ADDITIONAL SUBORDINATE COURT, KOZHIKODE
EXHIBIT P20: A TRUE COPY OF THE ORDER DATED
01.04.2017 IN IA NO.847/2017 IN OS
43/2016, ON THE FILE OF THE 1ST
ADDITIONAL SUBORDINATE COURT, KOZHIKODE
EXHIBIT P21: A TRUE COPY OF THE ORDER DATED
01.04.2017 IN IA NO.835/2017 IN OS
43/2016, ON THE FILE OF THE 1ST
ADDITIONAL SUBORDINATE COURT, KOZHIKODE
EXHIBIT P22: A TRUE COPY OF THE ORDER DATED
01.04.2017 IN IA NO.836/2017 IN OS
O.P.(C)No.1600/2017
43/2016, ON THE FILE OF THE 1ST
ADDITIONAL SUBORDINATE COURT, KOZHIKODE
RESPONDENTS' EXHIBITS: NIL
