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2022 Supreme(Ker) 685
IN THE HIGH COURT OF KERALA AT ERNAKULAM
SHAJI P. CHALY, J.
R.R. Antony S/o Raphel – Petitioner
Versus
Additional Tahsildar, Kannayanur Taluk – Respondent
W.P. (C) No. 3195 of 2013
Decided On : 23-09-2022
Advocate Appeared:
For the Petitioners: P.N. Ramakrishnan Nair, P. Viswanathan, Jeffin John, Shibu Joseph.
For the Respondent: Joby Joseph.
Point of Law: Requirement of Section 65(e) r/w Section 74 of the Act 1872, no document other than a certified copy of the secondary evidence would be admissible in evidence.
Headnote:
Civil Procedure Code, 1908 - Order XIV - Rule 4 - Indian Evidence Act, 1872 - Section 64, 74, 65 - Provisions of the Act, 2002 - Right to Information Act, 2005 - Mandatory injunction - Proof of documents by primary evidence - Decree of permanent prohibitory injunction - Claiming title and possession over the property - Petitioner has filed this writ petition seeking to call for records pertaining to applications submitted by him before statutory authorities under Right to Information Act, 2005 - Order XV1 Rule 4B, any civil court is vested with powers to summon any officer of the Government for adducing evidence or to produce the documents in its or his public capacity.
Findings of the Court:
It may be true that, for requirement of Section 65(e) r/w Section 74 of Act 1872, no document other than a certified copy of secondary evidence would be admissible in evidence. Still, fact remains, even according to the authority, records could not be located to issue a certified copy. Therefore, it can be seen that a competent civil court is vested with ample powers under Section 65 of Act, 1872 to receive secondary evidence, taking into account various attendant circumstances as contained in said provision. It is apparent that petitioner is a party in the suit proceedings and therefore, he is at liberty to file an appropriate application and call for records from Village/Taluk Office concerned or prove said fact otherwise. By discussing so, I only intend to say that petitioner is not without a remedy to establish his case before court, where suits are pending trial or before any other court where issue is pending consideration.
Result: Writ Petition dismissed.
JUDGMENT :
SHAJI P. CHALY, J.
1. The petitioner has filed this writ petition seeking to call for the records pertaining to Exhibits P4, P6 and P9 applications submitted by him before the statutory authorities under the Right to Information Act, 2005 and Exhibit P16 communication issued by the Public Information Officer, Village Officer, Kakkanad informing him that the records sought for by him are not available in the Village Office, Kakkanad and to issue a writ directing the respondents to take action immediately on Exhibit P4 application submitted by the petitioner before the Public Information Officer, Tahsildar, Kanayannur Taluk dated 11.02.2009 and also to issue the certified copies of the documents mentioned therein, to the petitioner.
2. Basic facts for the disposal of the writ petition are as follows:
Petitioner is allegedly the owner of a property having an extent of 10 cents in Survey No. 449/1-2 of Thrikkakara South Village by virtue of Exhibit P1 patta bearing No. B6.LA.191/84 dated 08.04.1984 and Exhibit P2 order of assignment dated 08.04.1986. According to the petitioner, one Major P. Abraham has filed O.S No. 46 of 2009 against the petitioner and one K.J. Joseph before the Munsiff’s Court, Ernakulam praying for a decree of permanent prohibitory injunction to restrain the petitioner from forcibly evicting them from the above-said property and also for a mandatory injunction directing the petitioner to put them back to the said property, evident from Exhibit P3, copy of the plaint. It is also pointed out that the aforesaid K.J. Joseph, who is the second defendant in the suit, has also filed O.S. No. 50 of 2009 against one P.T. Abraham, the father of the plaintiff in O.S. No. 46 of 2009, claiming title and possession over the property in question before the Munsiff’s Court, Ernakulam and both suits are pending consideration.
3. The sum and substance of the contention is that the proof with regard to the title of the property is one of the prime issues to be adjudicated by the civil court. Therefore, the petitioner preferred Exhibit P4 application under the Right to Information Act, 2005 before the Additional Tahsildar, respondent No. 1, seeking certified copies of the documents relating to title. However, it was not issued to the petitioner and therefore, he preferred Exhibit P6 appeal before the Tahsildar, Kanayannur Taluk, second respondent and Exhibit P9 appeal before the State Information Commission, Thiruvananthapuram, respondent No. 3.
4. The case projected by the petitioner is that even though the said appeals were duly considered by the concerned authorities-the respondents, no proper action has been taken by them in the said application and appeals, which persuaded him to approach this Court by filing this writ petition. In spite of the pendency of this writ petition, for the past more than 9 years, no counter affidavit is filed by the respondents.
5. I have heard the learned counsel for the petitioner and the learned Senior Government Pleader Sri. Joby Joseph for the respondents.
6. The paramount contention advanced by the learned counsel for the petitioner is that the entire procedure adopted by the respondents on the basis of the application submitted by the petitioner is violative of the express provisions of the Act, 2005 and against the true spirit and mandate of the provisions of the said statute. It is further contended that there is absolutely no justification on the part of the respondents in furnishing the documents sought for by the petitioner. It is also submitted that there is no justification in pretending ignorance with regard to the file containing the details of the property.
7. That apart, it is predominantly contended that the respondents have no case that they have destroyed any files containing the details of the property and other details which are sought for by the petitioner. On the other hand, the learned Senior Government Pleader submitted that Exhibit P5 reply given to Exhibit P4 applica
