Kerala High Court
Madhava Sharma vs State Of Kerala on 3 June, 2022
OP(C) NO. 843 OF 2022
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
FRIDAY, THE 3RD DAY OF JUNE 2022 / 13TH JYAISHTA, 1944
OP(C) NO. 843 OF 2022
AGAINST THE ORDER DATED 11.3.2022 IN I.A NO.2 OF 2022 IN I.A NO.1
OF 2021 IN AS 7/2021 OF DISTRICT AND SESSIONS COURT,
ERNAKULAM
PETITIONERS:
1 K.S.MADHAVA SHARMA
AGED 52 YEARS, S/O.SUBRAMANIA SHARMA,
THAMAZHATHU MADAM, PAVANKULANGARA, THRIPUNITHURA,
PIN - 682305
2 K V BAHSEER
AGED 50 YEARS,
VETTEKKATU NIKARTHU, KODANTHURUTHU,
KUTHIYATHODU, CHERTHALA, ALAPPUZHA DISTRICT
PIN - 688533
BY ADVS.
SHRI.M.N.MANMADAN, CGC
A.RAJAGOPALAN
M.S.IMTHIYAZ AHAMMED
P.SEENA
VISWANATH SALISH
A.BALAGOPALAN
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY DISTRICT COLLECTOR,COLLECTORATE,
CIVIL STATION, KAKKANAD, ERNAKULAM - 682 030.
2 THE TAHSILDAR
KANAYANNUR TALUK,
KANAYANNUR TALUK OFFICER,
ERNAKULAM , PIN - 682011.
BY GOVT.PLEADER SMT.SYLAJA.S.L.
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 03.06.2022,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(C) NO. 843 OF 2022
2
Dated this the 3rd day of June,2022
JUDGMENT
The original petition is filed to set aside the order in
I.A.No.2/2022 in I.A.No.1/2021 in A.S. No.7/2021 (Ext.P5)
of the Court of the District Judge, Ernakulam.
2. The petitioners' case in a nutshell in the original
petition is that; they are the respondents in the above
appeal, filed by the respondents, to set aside the judgment
and decree in O.S.No.1302/2007 of the Court of the II nd
Additional Munsiff, Ernakulam. The respondents have also
filed I.A No.1/2021 (Ext P1) in appeal, to condone the delay
of 4145 days in preferring the appeal. The petitioners have
objected to the above application by filing Ext.P2 counter
affidavit. The court below has posted Ext.P1 for enquiry.
The respondents have examined the Tahasildar of
Kanayannur Taluk as PW1 and the evidence was closed.
Thereafter, the respondents have filed
I.A.No.2/2022(Ext.P3) to reopen the evidence. The
OP(C) NO. 843 OF 2022
petitioners have filed their counter affidavit (Ext P4) to the
said application. However, the court below by Ext.P5 order
has allowed Ext.P3 application. Ext.P5 is vitiated by
illegalities and irregularities. Hence, the original petition.
3. Heard; Sri. A Balagopalan, the learned counsel
appearing for the petitioners and the learned Government
Pleader appearing for the respondents.
4. The short point that arises for consideration in
this original petition is whether there is any illegality in
Ext.P5 order or not?.
5. On an appreciation of the pleadings and materials
on record, it can be gathered that the respondents have
examined PW1 to substantiate that there is sufficient cause
to condone the delay of 4145 days in filing the appeal.
PW1 has categorically admitted in her cross-examination
that she has produced the office file in its entirety. It is
after the closure of the evidence of PW1 and the marking
of Exts.A1 and A2, that the respondents have filed Ext.P3
to re-open the evidence.
OP(C) NO. 843 OF 2022
6. I find sufficient force in the argument of the
learned counsel appearing for the petitioners that, in view
of the admission made by PW1 that the office file produced
was complete, the respondents cannot be permitted to fill
in the lacuna by now contending that there is an office note
as well as the explanation of the Junior Superintendent
regarding the missing of the file, which was omitted to
marked in evidence.
7. Nevertheless, as the Additional Tahasildar(LR),
Kanayannur Taluk has, inter alia, sworn in affidavit in
support of Ext.P3 that the case bundle relating to O.S.
No.1302/2001 with office file No.A8-14444/1998, and the
documents were missing, that the same has not been
traced out, that the respondents have initiated an enquiry
against the concerned persons, that the enquiry is in
progress, that the date -wise original office notes of the
concerned file establishes the re-construction proceedings
and that some office notes were omitted to be produced
and marked through PW1 etc., I am of the firm view that
OP(C) NO. 843 OF 2022
the respondents right to press those documents in service
cannot be foreclosed because PW1 has testified that the
office file was produced in its entirety. Needless to
mention, if there is any contradiction between the
evidence of PW1 and the materials sought to be produced,
certainly it is a matter to be noted by the court below
while deciding Ext.P1 application.
8. The court below, to ascertain the truth, has
exercised its discretion as provided under Order XVIII,
Rule 17 of the Code of Civil Procedure, 1908, and re-
opened the evidence. It is not for this Court to sit in
judgment over the discretionary wisdom of the court below
at this nascent stage. After all, it is for the respondents to
prove their case through cogent evidence, that they were
precluded by sufficient cause in not preferring the appeal
within the prescribed time period. Ultimately, the
corroborative material that is sought to be pressed into
service, which the respondents assume would help their
plea, is a matter to be appreciated by the court below on
OP(C) NO. 843 OF 2022
its merits.
9. On a consideration of the oral testimony of PW1
and the averments in Ext.P3 application, I am of the view
that the respondents have to decide as to how the missing
records have to be proved. But, in any event, if any
additional document is sought to be produced and marked
in evidence, it goes without saying, the same shall be
accepted on record, subject to the objection of the
petitioners and after affording them full opportunity to
establish their defence. I do not find any circumstance to
interfere with Ext.P5 order in exercise of the supervisory
jurisdiction of this Court under Article 227 of the
Constitution of India.
In the result, I dispose of the original petition by
confirming Ext.P5 order, but with the rider that if any
document(s) is sought to be marked in evidence, the same
shall be accepted on record, after affording the petitioners
an opportunity to establish their objection/defence.
ma/4.6.2022 Sd/- C.S.DIAS, JUDGE
OP(C) NO. 843 OF 2022
APPENDIX OF OP(C) 843/2022
PETITIONER EXHIBITS
Exhibit P1 THE TRUE COPY OF I.A NO 1 OF 2021 DATED
29.01.2021 FILED BY THE RESPONDENTS
Exhibit P2 THE TRUE COPY OF THE COUNTER AFFIDAVIT
DATED 10.09.2021 FILED BY THE PETITIONERS
Exhibit P3 TRUE COPY OF I.A NO 2 OF 2022 DATED
17.02.2022 FILED BY THE RESPONDENTS
Exhibit P4 TRUE COPY OF THE COUNTER AFFIDAVIT FILED
IN I.A NO 2 OF 2022 DATED 21.02.2022 FILED
BY THE PETITIONERS
Exhibit P5 THE TRUE COPY OF THE ORDER IN I.A 2 OF
2022 IN I.A 1 OF 2021 IN A.S NO 7 OF 2021
DATED 11.03.2022 PASSED BY THE HONOURABLE
DISTRICT COURT, ERNAKULAM
