Karunagappally v. Sundar Lal and Komala Sundaran

``` OP(C) NO. 2562 OF 2022 ``` ``` 1 ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` TUESDAY, THE 14[TH] DAY OF FEBRUARY 2023 / 25TH MAGHA, 1944 OP(C) NO. 2562 OF 2022 ``` ``` AGAINST THE ORDER in I.A 6/2022 IN AS 54/2019 OF SUB COURT, ``` ## **`KARUNAGAPPALLY`** ## **`PETITIONER/3RD RESPONDENT IN APPEAL:`** ``` MANOHARAN AGED 55 YEARS, S/O SARGADHARAN, VAVVAKKAVU VEEDU, VAVVAKKAVU PO, CHANGANKULANGARA, OACHIRA, PIN - 690528 ``` ``` BY ADV M.R.SASITH ``` ## **`RESPONDENTS/ADDITIONAL 2ND APPELLANT/2ND RESPONDENT IN`** ## **`APPEAL:`** ``` 1SUNDAR LAL AGED 44 YEARS S/O LATE KRISHNAMMA, VAVVAKAVU VEEDU, VAVVAKAVU PO., CHANGANKULANGARA MURI, OACHIRA VILLAGE, PIN - 690528 ``` ``` 2KOMALA SUNDARAN AGED 67 YEARS, S/O SARGADHARAN, VAVVAKAVU VEEDU, VAVVAKAVU PO., CHANGANKULANGARA MURI, OACHIRA VILLAGE, PIN - 690528 ``` ``` BY ADV A.R.DILEEP(K/700/1998) (B/o) ``` ``` THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 14.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` OP(C) NO. 2562 OF 2022 ``` ``` 2 ``` ## **JUDGMENT** Aggrieved by Ext.P8 order passed in I.A No.6/2022 in A.S No.54/2019 by the Court of the Subordinate Judge, Karunagappally (Lower Appellate Court), the third respondent in the appeal has filed the original petition. The respondents are the second appellant and the second respondent in appeal. 2. The relevant background facts leading to Ext.P8 order are: (i). The petitioner was the third defendant in O.S No.267/2015 of the Court of Munsiff, Karunagappally, (Trial Court) which was filed by late Krishnamma, the mother of the first respondent for a decree of partition. (ii) The suit was dismissed by the Trial Court. (iii) Aggrieved by the dismissal of the suit, late Krishnamma filed A.S No.54/2019 before the Lower ``` OP(C) NO. 2562 OF 2022 ``` ``` 3 ``` Appellate Court. (iv). Pending the appeal, Krishnamma died and the first respondent has been impleaded as the second appellant in the appeal. (v). During the pendency of the appeal, the Special Deputy Collector (Land Acquisition), National Highway & Competent Authority,(Acquisition Authority) passed Award No.OCHR 0529 after acquiring a portion of the property belonging to the petitioner covered by will deeds dated 2.11. 2011 and 30.8.2017. (vi). The will deeds were executed by Shyama Sundaran – the original first respondent in the appeal, who also died pending the appeal. (vii).The petitioner had produced the abovementioned original will deeds before the Trial Court and the same were marked as Exts.B2 and B3 in evidence. (viii).As the Acquisition Authority has directed the petitioner to prove his title over the acquired property ``` OP(C) NO. 2562 OF 2022 ``` ``` 4 ``` for payment of compensation, he filed I.A 1/2021 for return of the will deeds to be produced before the Acquisition Authority. (ix). But, the Lower Appellate Court rejected the Ext.P4 application by Ext.P5 order. (x) Challenging Ext.P5 order, the petitioner filed O.P (C) No.749/2022 before this Court. By Ext.P6 judgment, this Court set aside the Ext.P5 order and permitted the petitioner to file a fresh application in the appeal after impleading the legal representatives of the deceased appellant. (xi) Consequently, the petitioner filed I.A No.6/2022 (Ext.P7) as directed by this Court in Ext.P6 judgment. Yet, the court below, by the impugned Ext.P8 order, dismissed Ext.P7 application. (xii).Ext.P8 is manifestly wrong and unsustainable in law. Hence the original petition. 3. Heard; Sri.Sasith M.R., the learned counsel ``` OP(C) NO. 2562 OF 2022 ``` ``` 5 ``` appearing for the petitioner. Even though notice has been served on the respondents, there is no appearance for them. 4. The short point is, whether there is any error in Ext.P8 order. 5. On an appreciation of the pleadings and materials on record, it is evident from Ext.P1 judgment that the will deeds were produced by the petitioner and they were marked in evidence as Exts.B2 and B3. 6. The petitioner’s case is that, he wants to substantiate his tittle before the Acquisition Authority to claim compensation in the acquisition proceedings. Therefore, he wants the return of Exts.B2 and B3 will deeds. 7. The court below, by the impugned Ext.P8 order, has rejected the application mainly on the findings that the appeal is pending consideration and the petitioner has already transferred his rights over the property to ``` OP(C) NO. 2562 OF 2022 ``` ``` 6 ``` one Vinod Kumar. 8. Order 13 Rule 9 of the Code of Civil Procedure,1908, (in short ‘Code’) deals with return of admitted documents. It is profitable to extract the said provision, which reads as follows: ## **“ 9. Return of admitted documents.** - (1) Any person, whether a party to the Suit or not, desirous of receiving back any document produced by him in the suit and placed on the record shall, unless the document is impounded under rule 8, be entitled to receive back the same,— (a) where the suit is one in which an appeal is not allowed, when the suit has been disposed of, and (b) where the suit is one in which an appeal is allowed, when the court is satisfied that the time for preferring an appeal has elapsed and that no appeal has been preferred or, if an appeal has been preferred, when the appeal has been disposed of: **Provided that a document may be returned at any time earlier than that prescribed by this rule if the person applying there for—** **(a) delivers to the proper officer for being substituted for the original,** — ## **(i) in the case of a party to the suit, a certified copy, and** (ii) in the case of any other person, and ordinary copy which has been examined, compared and certified in the manner mentioned in sub-rule (2) of rule 17 of Order VII, and ``` OP(C) NO. 2562 OF 2022 ``` ``` 7 ``` ## **(b) undertakes to produce the original, if required to do so:** Provided also, that no document shall be returned which, by force of the decree, has become wholly void or useless. (2) On the return of a document admitted in evidence, a receipt shall be given by the person receiving it.” 9. Likewise, Rules 131 and 134 of the Civil Rules of Practice, Kerala, deals with applications for return of documents. 10. A reading of the above provisions substantiate that the court is vested with ample power to order the return of a document, provided the original document is substituted with a certified copy and the applicant undertakes to produce the original document as and when required. 11. In the instant case, undisputedly, the petitioner has produced Exts.B2 and B3 will deeds. He wants the documents for the limited purpose of showing the same to the Acquisition Authority and claim compensation. ``` OP(C) NO. 2562 OF 2022 ``` ``` 8 ``` 12. In view of the enabling provision under the proviso to sub-clause (b) of sub-rule (1) of Rule 9 of Order 13 of the Code, I am of the firm view that Ext.P7 application is to be allowed for the purpose mentioned above, otherwise it would cause substantial prejudice and pecuniary loss to the petitioner. Furthermore, no prejudice will be caused to the respondents in the above exercise. Likewise, the above provision has provided adequate safeguards for the return of the original document. 13. This Court in **Paulose Thomas (Fr) and another v. Skaria Thomas and others** [2017 (5) KHC 846], in a case of identical circumstances, has ordered the return of the original documents. Resultantly, in exercise of the supervisory powers of this Court under Article 227 of the Constitution of India, I allow the original petition, as follows: ``` OP(C) NO. 2562 OF 2022 ``` ``` 9 ``` (1) Ext.P8 order is set aside. (2) Ext.P7 application is allowed, on the following conditions: (a). The petitioner shall file an undertaking before the court below that he shall return the originals of Exts.B2 and B3 to the court below within one month from the date the documents are handed over to him, and use them only for the limited purpose mentioned in the original petition and shall not tamper with the documents. (b) The petitioner shall apply for the certified copies of Exts.B2 and B3 will deeds, in accordance with law, and produce the certified copies in A.S No.54/2019. ``` OP(C) NO. 2562 OF 2022 ``` ``` 10 ``` (c). Immediately on the petitioner producing the certified copies of Exts.B2 and B3, the court below shall hand over the original of Exts.B2 and B3 will deeds to the petitioner, in accordance with law. ma/14.2.2023 **Sd/- C.S.DIAS JUDGE** ``` OP(C) NO. 2562 OF 2022 ``` ``` 11 ``` ## **`APPENDIX OF OP(C) 2562/2022`** - `PETITIONER EXHIBITS Exhibit P1` ``` THE TRUE COPY OF JUDGMENT IN OS NO. 267/2015 BEFORE THE MUNSIFF COURT KARUNAGAPPALLY DATED 31.08.2019 ``` - `Exhibit P2 THE TRUE COPY OF APPEAL FILED AS A.S NO.54/2019 DATED 02.11.2019 BEFORE THE HON'BLE COURT OF THE SUBORDINATE JUDGE, KARUNAGAPPALLY` - `Exhibit P3 THE TRUE COPY OF THE PROCEEDINGS OF THE SPECIAL DEPUTY COLLECTOR (LAND ACQUISITION) NATIONAL HIGHWAY & COMPETENT AUTHORITY AT KOLLAM AS AWARD NO. OCHR 0529 DATED 10.03.2022` - `Exhibit P4 THE TRUE COPY OF THE IA FILED AS IA NO.1/2021 IN AS NO. 54/2019 DATED 16.12.2021` - `Exhibit P5 THE TRUE COPY OF THE ORDER PASSED BY THE HON'BLE COURT OF THE SUBORDINATE JUDGE, KARUNAGAPPALLY IN I.A. NO. 1/2021 IN A.S NO.54/2019 DATED 21.02.2022` - `Exhibit P6 THE TRUE COPY OF THE JUDGMENT PASSED BY THIS HON'BLE COURT IN OP(C) NO.749/2022 DATED 04.08.2022` - `Exhibit P7 THE TRUE COPY OF IA NO.6/2022 IN AS NO. 54/2019 FILED BEFORE THE HON'BLE COURT OF THE SUBORDINATE JUDGE AT KARUNAGAPPALLY DATED 11.08.2022` - `Exhibit P8 THE TRUE COPY OF THE ORDER PASSED IN IA NO.6/2022 IN AS NO. 54/2019 BY THE HON'BLE COURT OF THE SUBORDINATE JUDGE AT KARUNAGAPPALLY DATED 17.11.2022`