Joseph vs Sebastian Zacharias

C.S.Dias, J

The original petition is filed to set aside Ext.P5 order passed by the Court of Munsiff, Pala, in A.R.D.No.40 of 2023 in O.S.No.94 of 2016.

The brief relevant facts leading to Ext.P5 order are as follows:

(i) The petitioner is the plaintiff in the above suit, which was filed against the respondents for a decree for the recovery of possession and other ancillary reliefs.

(ii) The suit was decreed and the same was challenged by the respondents in A.S.No.43/2019 before the Court of Subordinate Judge, Pala. But, the appeal was also dismissed.

(iii) The plaint schedule property devolved on the petitioner on the basis of Ext.P3 Partition Deed. The petitioner had produced Ext.P3 deed in the suit and the same was marked in evidence as Ext.A1.

(iv) After the appeal was dismissed, the petitioner filed A.R.D.No.40 of 2023 (Ext.P4) in the suit for the return of the original of Ext.P3. The petitioner has substituted the original of Ext.P3 with a certified copy and had also undertaken to produce the original deed as and when directed by the court below.

(v) However, the court below, for the reason that a Second Appeal is pending before this Court as R.S.A.No.227 of 2022, by the impugned Ext.P5 order, has rejected Ext.P4 application.

(vi) Ext.P5 is manifestly wrong and unsustainable in law. Hence, the original petition.

Heard; Sri.K.C.Vincent, learned counsel appearing for the petitioner and Sri.Shibu Joseph, learned counsel appearing for the respondents.

On an appreciation of the pleadings and materials on record, I see that the suit was decreed in favour of the petitioner and the decree was confirmed by the lower Appellate Court. It is thereafter the petitioner filed Ext.P4 application for the return of Ext.P3 deed for the purpose of showing the document before the Registering Authority, to sell a portion of his property.

It is on record that the petitioner has already substituted the original of Ext.P3 deed with a certified copy and has undertaken to produce the original as and when required. Further more, it is seen from Ext.P6 proceedings that, although a Second Appeal is filed before this Court on 08.04.2022, the same has not been admitted till date.

On an overall appreciation of the facts and circumstances of the case and the materials on record, I am of the definite view that the mere pendency of the Second Appeal cannot be a ground to deny the petitioner’s constitutional right to deal with his property by seeking for the return of the original of Ext.P3 deed for the limited purpose of producing it before the Registration Authority. Thus, I am inclined to invoke the supervisory powers of this Court under Article 227 of the Constitution of India and allow the original petition.

Resultantly, I allow the original petition as follows:

(i). Ext.P5 order is set aside.

(ii).  Ext.P4 application is allowed.

(iii). The Court of the Munsiff, Pala, is directed to return the original of Ext.P3 deed (which is marked as Ext.A1 in the suit), subject to the condition that the petitioner substitutes the original of Ext.P3 deed with a certified copy and files an undertaking before the Trial Court that he would return the original Ext.P3 deed before the court below within two months from the date of the deed is handed over to him, and that he would not tamper with Ext.P3 deed while the same is in his custody.