P.V. Hamza v. Muhammed @ Mani

OP(C) NO. 1145 OF 2022 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 5[TH] DAY OF AUGUST 2022 / 14TH SRAVANA, 1944 OP(C) NO. 1145 OF 2022** **AGAINST THE ORDER/JUDGMENT OS 338/2017 OF MUNSIFF COURT,** **OTTAPPALAM** ## **PETITIONER/S:** P.V.HAMZA, AGED 71 YEARS, S/O. LATE ABDUL KHADER, AGED 71 YEARS,PANIKKAVEETTIL, KANNIAMPURAM AMSOM, THOTTAKKARA DESOM, OTTAPALAM TALUK,PALAKKAD DISTRICT, PIN - 679104 BY ADVS. SANTHEEP ANKARATH P.ANIRUDHAN ## **RESPONDENT/S:** MUHAMMED @ MANI, S/O. VALLIYIL KUNHU HAJI, VALLAPUZHA AMSOM DESOM, PATTAMBI TALUK, PALAKKAD DISTRICT, PIN - 679336 BY ADVS. Mohammed Shah Shah RENOY VINCENT(K/000580/2017) HELEN P.A.(K/000084/2019) ARUN ROY(K/413/2019) SHAHIR SHOWKATH ALI(K/000584/2019) THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 05.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C) NO. 1145 OF 2022 2 ## **JUDGMENT** Aggrieved by the order dated 23.06.2022 in I.A.No.1987/2022 in O.S.No.338/2017 (Ext.P5) passed by the Court of the Munsiff, Ottappalam, the defendant in the suit has filed the original petition. 2. The skeletal facts, relevant for the determination of the original petition, are: the petitioner is the defendant in the above suit filed by the respondent for a decree of mandatory injunction, to direct the petitioner to surrender the vacant possession of the property scheduled in Ext.P1 plaint. The petitioner has filed Ext.P2 written statement denying the allegations in Ext.P1 plaint, inter-alia, contending that the shop room was given to him on a 'lease' and not a 'license'. The petitioner has filed O.S.No.214/2017 against the respondent, before the same Court, for a decree of permanent prohibitory injunction, to restrain 3 OP(C) NO. 1145 OF 2022 the respondent from forcefully dispossessing the petitioner from the shoproom. The suits are consolidated and are being jointly tried. The respondent had filed I.A.No.939/2022, to appoint an Advocate Commissioner and list out certain matters mentioned in the application. The same was objected to by the petitioner. Nonetheless, the Court below, without appreciating the contentions, allowed the application. The said application was itself an abuse of process of law. The Advocate Commissioner inspected the property and has filed a report. Thereafter, the suit was listed for trial. The respondent has now filed Ext.P3 application, invoking Order XI Rule 14 of the Code of Civil Procedure (in short 'Code'), seeking production of numerous documents. The same has been objected to by the petitioner by filing Ext.P4 counter affidavit. It is specifically contended in Ext.P4, that there is no requirement to cause the production of the documents, OP(C) NO. 1145 OF 2022 4 since the question involved in the suit does not require the production of the documents. However, the Court below, without appreciating Ext.P4 written objection in its proper perspective, by the impugned Ext.P5 order has allowed Ext.P3 application and has directed the petitioner to produce document no. 1, document nos. 3 and 4 in serial No.2 and document nos. 3, 4, 5 and 6. Ext.P5 is erroneous and unsustainable in law. Hence, the original petition. 3. Heard; Sri.Santheep Ankarath, the learned counsel appearing for the petitioner and Sri. Shyamkumar, the learned counsel appearing for the respondent. 4. Sri.Santheep Ankarath vehemently argued that O.S.No.214/2017 has been filed by the petitioner for a decree against forceful eviction by the respondent from the shoproom and O.S.No.338/2017 has been filed by OP(C) NO. 1145 OF 2022 5 the respondent for a decree of mandatory injunction to evict the petitioner from the shoproom. The petitioner's case is that the shoproom has been let out to him by the respondent on lease and the respondent's case is that the shop room has been let out to the petitioner on a license. Therefore, the only issue to be decided in the suits is whether the letting out of the shop room to the petitioner is on lease or license and nothing more. In the said background, Ext.P5 order directing the petitioner to produce several documents is unwarranted, unnecessary and irrelevant. He placed reliance on the decisions of this Court in **Anthoyokkya Viswasa Samrakshana Samithi vs. Paulise** [ILR 2013 (1) Kerala 1982] and in **Padmanabhan vs. Kannan** [1980 KHC 7], to canvass the position that what is contemplated under Order XI Rule 14 of the Code, is that the Court can direct the production of any document in possession of a party relating to any OP(C) NO. 1145 OF 2022 6 matter in question in the suit and not anything outside the purview of the suit. The documents directed to be produced are not germane in the two suits. Therefore, whether the petitioner has any other shoproom in his possession is not contextual. 5. Sri.Shyamkumar opposed the above submission and contended that the petitioner has suppressed material facts in the original petition, as he has done before the Court below. The petitioner has deliberately not produced the inter-party judgment of this Court in O.P.(C) No.501/2021 passed on 16.03.2022 arising out an order appointing an Advocate Commissioner. The Court below had appointed an Advocate Commissioner to ascertain whether the allegation that the petitioner had no other building in his possession. It is trite, that a person who suppresses material facts is disentitled to an equitable relief. Now the commission report establishes that the petitioner has other building, which OP(C) NO. 1145 OF 2022 7 disproves the assertions in the plaint. After this Court passed the judgment in OP(C) No.501/2021, the respondent filed Ext.P3 application, which was allowed by Ext.P5 order. There is nothing wrong in directing the petitioner to produce the documents, which is to prove that the petitioner has filed O.S.No.214/2017 with unclean hands. Since the suits are consolidated and are being jointly tried, the respondent had filed application to appoint the Advocate Commissioner as well as for discovery of the documents in O.S.No.214/2017. There is no error in Ext.P5 order, especially in the light of the judgment passed by this Court in OP(C) No.501/2022. Hence, the original petition may be dismissed. 6. The question is whether there is any illegality in Ext.P5 order. 7. Undisputedly, this Court in the judgment in OP(C) No.501/2022, has held thus: OP(C) NO. 1145 OF 2022 8 “4. Per contra, Adv.Syam Kumar who appeared for the respondent submitted that O.S.No.338/2017 is a suit filed by the respondent herein for mandatory injunction. He also submitted that another suit O.S.No.249/2017 also filed by the petitioner herein against the respondent apprehending forceful eviction. In the said suit, the petitioner raised contention to the effect that the petitioner is having no other building to cope with his business and he cannot conduct business anywhere else. It is submitted by the learned counsel for the respondent that the contentions raised in the above suit is by seeking discretionary relief of injunction. Material facts were suppressed by the petitioner, in the sense that the petitioner's occupation regarding buildings near the place of business, and availability of other buildings near by the plaint schedule building and in such a way, the petitioner herein is not entitled to get the discretionary relief of injunction, since he approached the Court with unclean hands by suppressing material facts. The respondent sought for appointing a commission to establish the said suppression of material facts. Therefore, the order of the learned Munsiff, appointing a commission in the context of facts discussed, is perfectly in order and therefore, the Original Petition is liable to be dismissed. 5. Having appraised the contentions on and off the issue, I do agree with the learned counsel for the OP(C) NO. 1145 OF 2022 9 respondent. Therefore, I cannot find any arbitrariness, perversity or absolute illegality in the order appointing a commission to have interference of the decree order, impugned hereunder, by exercising supervisory power empowered under Article 227 of the Constitution of India. This Original Petition stands dismissed”. 8. The specific case of the petitioner is that he has no other building in his possession to conduct his business. He has sought for a discretionary relief of injunction. 9. In order to disprove the allegations in the plaint, the respondent had sought to appoint an Advocate Commissioner, which was allowed and the said order was confirmed by this Court in OP(C) No.501/2022. After the filing of the commission report, which establishes that the petitioner has other building in his possession, the respondent has filed Ext.P3 application to cause production of certain documents. 10. The contention of the learned counsel OP(C) NO. 1145 OF 2022 **==> picture [13 x 9] intentionally omitted <==** appearing for the petitioner is that the documents directed to be produced by Ext.P5 order are not one relating to any matter in question in the suit. Therefore, Ext.P5 is bad in law. 11. On an appreciation of the pleadings and materials on record and the findings rendered by this Court in OP(C) No.501/2022, especially the fact that the petitioner has specifically pleaded in the plaint that he has no other building in his possession, I am of the definite view that the above matter is an issue to be decided in O.S.No.214/2017, because the petitioner seeks for an equitable relief. In the above background, I am of the firm view that there is no error in Ext.P5 order passed by the Court below, directing the petitioner to produce the documents as ordered in Ext.P5, which is to establish whether there is any suppression or not. I do not find OP(C) NO. 1145 OF 2022 11 any error or illegality in Ext.P5 order warranting interference by this Court under Article 227 of the Constitution of India. The original petition fails and is dismissed. Being conscious that the defence of the respondent in O.S.No.214/2017 is suppression of facts by the petitioner, and the fact that the suit is pending, this Court refrains from passing any strictures against the petitioner for the non-production of the judgment in OP(C) No.501/2022. Any how, in view of the pendency of this original petition and the interim order passed by this Court, the time period to produce the documents as directed in Ext.P5 order is enlarged by a further period of one week from the date of receipt of a certified copy of this judgment. Sd/- ## **C.S.DIAS, JUDGE** rkc/05.08.22 OP(C) NO. 1145 OF 2022 12 ## **APPENDIX OF OP(C) 1145/2022** PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE PLAINT IN O.S. NO. 338/2017 DATED 24.10.2017 ON THE FILE OF THE MUNSIFF'S COURT, OTTAPALAM. EXHIBIT P2 TRUE COPY OF THE WRITTEN STATEMENT DATED 20.6.2018 IN O.S. NO. 338/2017 FILED BY THE PETITIONER HEREIN BEFORE THE MUNSIFF'S COURT, OTTAPALAM. EXHIBIT P3 TRUE COPY OF I.A. NO. 1987/2022 DATED 14.6.2022 FILED BY THE RESPONDENT HEREIN IN O.S. NO. 338/2017 ON THE FILE OF THE MUNSIFF'S COURT, OTTAPALAM EXHIBIT P4 TRUE COPY OF THE OBJECTION DATED 16.6.2022 FILED BY THE PETITIONER HEREIN IN I.A. NO. 1987/2022 IN O.S. NO. 338/2017 ON THE FILE OF THE MUNSIFF'S COURT, OTTAPALAM. EXHIBIT P5 TRUE COPY OF ORDER DATED 23.6.2022 IN I.A. NO. 1987/2022 IN O.S. NO. 338/2017 PASSED BY MUNSIFF'S COURT, OTTAPALAM.