HIGH COURT OF KERALA
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(1.) The appellant herein is the 1st defendant; and the suit is for recovery of the profits of property lost to the plaintiff within three years preceding the institution of the suit, on account of the defendants procuring several orders from court and thereby delaying the plaintiffs getting possession of the property in execution of the decree in O.S.
No. 409 of 1105 on the file of the Munsiff, Kanjirappally, wherein the present 1st defendant was the 3rd defendant. The several applications moved by the defendants were ultimately dismissed by the court. The dismissal of the last of such obstructive motions was on 25-1-1952 so that the plaintiff got delivery of possession through court on 29-1-1952 only. In this suit, instituted on 29-5-1952, the plaintiff is claiming Rs. 1,200 being the profits for three years thus lost to him by the acts of the defendants.
(2.) The 1st defendant contended that he had only been seeking reliefs under law, that the execution in O.S. No. 409 was really within the prohibition of Act VIII of 1950 (T-C.) (the decree being for eviction of a lessee) and that the plaintiff was not entitled to any relief in this suit. The Munsiff decreed the suit awarding mesne profits to the plaintiff at Rs. 286-12-9 per annum for the period from 29-5-1949 to 12-1-1952 which latter date was found to be the date of delivery of the property to him; and the lower appellate court upheld it. Hence this second appeal.
(3.) Mr. Sivasankara Panicker, appeared on behalf of the plaintiffs but was not heard on this second appeal for the following reason:
The Trial Court decreed the suit on November 21, 1955. Soon after that, on January 2, 1956, Exts. A to HI, being all the documentary evidence on the side of the plaintiffs, were taken away from court by the plaintiffs, even before the first appeal was filed before the District Court, Kottayam. After the institution of this second appeal this court wrote for the above said exhibits; and on receipt of the communication, the Munsiff, Kanjirapally, called upon the plaintiffs counsel to bring back the aforesaid exhibits to be forwarded to this Court for purposes of this second appeal. Counsel stated that, on intimation of the above call, the plaintiff had informed him that the concerned documents had been entrusted to their counsel in the High Court, that they were unaware whether the records had been actually produced in the High Court or not, and that he had instructed them to see that the exhibits, if not already produced, were produced in the High Court without fail. The statement of counsel has been forwarded to this Court along with the Munsiffs letter which reads thus:
No. R.72/61 Kanjirapally,
M. K. Krishnan, B. Sc., B. L.,
The Registrar, High Court,
Sub: Exts. A to HI in O. S.159/52 of this court.
Ref: High Court letter No. CRSA 721/61 dated 14-9-1961. Sir,
With reference to the above, I have the honour to inform you that Exts. A to HI in O.S. 159/52 of this court were returned to the plaintiffs counsel on 2-1-1956. Notice has been issued to the plaintiffs counsel to produce them before this court, but he has filed a statement on
26-9-1961 stating that the plaintiff has entrusted those records with his advocate in the High Court. The statement is herewith forwarded.
Mr. Sivasankara Panicker stated that he had not been entrusted with any of those exhibits.;
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