JUDGMENT

The original petition is filed to set aside the order dated

10.12.2018 in I.A. No.2837/2018 in OS No.214/2012 (Ext.P7)

of the Court of the Munsiff, Kochi.

2. The petitioner’s case, in brief, in the memorandum of original petition is that, he is the second defendant in the above suit which is filed by the respondents 1 to 5, seeking a decree for fixation of western boundary of plaint A schedule property and for prohibitory injunction. The respondents 6 to 10 in the original petition are the defendants 1,3 to 6 in the suit. The petitioner and the 6th respondent have contested the suit by filing Ext.P2 written statement. The main area of the dispute is relating to the width of the plaint B schedule property. The first respondent was examined as PW1 and the Taluk Surveyor was examined as PW6. It has come out during the course of trial that there is some inconsistency in the measurement of the property. Then, the petitioner has filed Ext.P3 application to call for the proceedings in OA No.1305/1917 of the Land Tribunal, Vypin. The said application was dismissed by Ext.P4 order. Then, the petitioner has filed Ext.P6 application to accept Ext.P5 proceeding of the Revenue Divisional Officer, Fort Kochi. However, the court below by impugned Ext.P7 order, has dismissed Ext.P6 application. Ext.P7 order is wrong. Hence, the original petition.

3. Heard; Sri. J. Abhilash, the learned counsel appearing for the petitioner and Sri. K.S. Madhusoodanan, the learned counsel appearing for the respondents 1,2,4 and 5. Service is complete on the others.

4. The sole point that arises for consideration in this original petition is whether there is any illegality or error in Ext.P7 order passed by the court below.

5. The petitioner has filed Ext.P6 application to receive and mark Ext.P5 proceeding in the suit. The main grievance of the respondents 1 to 5/ the plaintiffs in the suit is that Ext.P5 can be accepted on record only if the same is marked either through the RDO, who has issued the proceeding or through the petitioner who desires to produce the document, so that the respondents 1 to 5 can cross examine the witness and discredit the document, otherwise, the respondents 1 to 5 would be put to severe prejudice.

6. The court below, by the impugned order, has dismissed Ext.P6 application, mainly on the ground that the document was filed after the closure of plaintiffs’ evidence, that the petitioner has not given any reason for not producing the document at an earlier stage, and also that there is no reason as to the relevancy of the said document. I find the course adopted by the court below to be hyper technical and irregular.

7. On a consideration of the pleadings and materials on record, I am of the view that the petitioner's right to rely on Ext.P5 proceeding passed by the Revenue Divisional Officer, Fort Kochi, cannot be foreclosed for the reason that the same was produced belatedly and the petitioner has not stated any reason in the application. Therefore, I am of the definite view that Ext.P5 can be accepted on record, provided the same is marked in evidence through the petitioner and by permitting the respondents 1 to 5 to cross examine the petitioner touching the relevancy of the document, which in turn would render substantial justice to both sides.

In the result, in exercise of the supervisory powers of this Court under Article 227 of the Constitution of India, I dispose of the original petition in the following manner:-

(i) Ext.P6 application is allowed.

(ii) Ext.P5 proceeding shall be accepted and marked in evidence through the petitioner, who shall be subjected to cross examination by the respondents 1 to 5 touching the relevancy of the document.

(iii) In case of any necessity regarding the contents of Ext.P5, the petitioner would be at liberty to summon and prove Ext.P5 proceeding in accordance with law.

(iv) On a consideration of the fact that the suit of the year 2012, I direct the court of the Principal Munsiff, Kochi, to consider and