SAMBASIVAN vs SHYLAJA KUMARI
- Court
- Kerala High Court
ICR (OP(C)) Nos.8/2025 & 844/2022
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR
TH
THURSDAY, THE 4 DAY OF JUNE 2026 / 14TH JYAISHTA, 1948
ICR (OP(C)) NO. 8 OF 2025
PETITIONER/RESPONDENT/PLAINTIFF:
SAMBASIVAN
AGED 57
SON OF ANANDA PANICKER, SHILPA NIVAS, PARAMESWARAN,
NELLANAD, NELLANAD P.O., CHEMPOORU, NEDUMANGAD
THIRUVANANTHAPURAM (IN EXHIBIT-P3 MISTAKENLY SHOWN AS
HILPA NIVAS, PARAMESWARAM, NELLANAD IN NELLANAD
VILLAGE, NEDUMANGAD TALUK.)
BY ADV SRI.A.S.SHAMMY RAJ
RESPONDENT/PETITIONER/DEFENDANT:
SHYLAJA KUMARI
DAUGHTER OF MANIYAMMA, KALYAN BHAVAN, KOPPAM,
VITHURA P.O., THIRUVANANTHAPURAM - 695551. (IN EXHIBIT-
P3 MISTAKENLY SHOWN AS KALLYAN BHAVAN, VALIYAVENKODE,
THOTTUMUKKU, THOLICODE P.O., THOLICODE VILLAGE)
THIS INTRA COURT REFERENCE (OP (CIVIL)) HAVING COME UP FOR
HEARING ON 22.05.2026, ALONG WITH OP(C).844/2022, THE COURT ON
04.06.2026 DELIVERED THE FOLLOWING:
ICR (OP(C)) Nos.8/2025 & 844/2022
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR
TH
THURSDAY, THE 4 DAY OF JUNE 2026 / 14TH JYAISHTA, 1948
OP(C) NO. 844 OF 2022
AGAINST THE ORDER DATED 7.4.2022 IN I.A.NO.1/2022 IN OS
NO.922 OF 2013 OF PRINCIPAL MUNSIFF COURT,NEDUMANGAD
PETITIONER/RESPONDENT/PLAINTIFF::
SAMBASIVAN
AGED 57
SON OF ANANDA PANICKER, SHILPA NIVAS, PARAMESWARAN,
NELLANAD, NELLANAD P.O., CHEMPOORU, NEDUMANGAD
THIRUVANANTHAPURAM, (IN EXHIBIT-P3 MISTAKENLY SHOWN AS
HILPA NIVAS, PRAMESWARAM, NELLANAD IN NELLANAD VILLAGE,
NEDUMANGAD TALUK), PIN - 695606
BY ADV SRI.A.S.SHAMMY RAJ
RESPONDENT/PETITIONER/DEFENDANT:
SHYLAJA KUMARI
DAUGHTER OF MANIYAMMA, KALYAN BHAVAN, KOPPAM, VITHURA
P.O., THIRUVANANTHAPURAM (IN EXHIBIT-P3 MISTAKENLY
SHOWN AS KALLYAN BHAVAN, VALIYAVENKODE, THOTTUMUKKU,
THOLICODE P.O., THOLICODE VILLAGE), PIN - 695551
BY ADV SMT.MINIMOL R.
THIS OP (CIVIL) HAVING COME UP FOR HEARING ON 22.05.2026,
ALONG WITH ICR (OP(C))NO.8/2025, THE COURT ON 04.06.2026 DELIVERED
THE FOLLOWING:
ICR (OP(C)) Nos.8/2025 & 844/2022
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CR
SATHISH NINAN & P. KRISHNA KUMAR, JJ.
= = = = = = = = = = = = = = = = = =
ICR (OP(C))No.8 OF 2025 &
OP(C)No.844 OF 2022
= = = = = = = = = = = = = = = = = =
th
Dated this the 4 day of June, 2026
JUDGMENT
P.Krishna Kumar, J.
“On an application under Section 151 of the Code of Civil
Procedure, can a document produced in Court by one party and
not admitted in evidence, be returned to the opposite party on
his application?” The matter has been referred to this Bench
on account of doubts entertained regarding the correctness of
the decision of a learned Single Judge of this Court in Vinod
Kumar S. v. ICIC Bank [judgment dated 15/6/2022 in O.P.
(C)No.1032/2021], wherein the question was answered in the
affirmative.
2. A suit for declaration of title and possession over
the plaint schedule property was dismissed by the trial court
on 16.01.2017 as “not pressed”, at the instance of the
plaintiff-petitioner herein, purportedly pursuant to a
settlement arrived at between the parties. It is alleged in
the plaint that, although the property was intended to be
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purchased in the name of the petitioner, the respondent, who
had been entrusted by the petitioner with the task of making
arrangements for the execution and registration of the sale
deed in his absence, dishonestly caused the sale deed to be
registered in her own name, despite the entire sale
consideration having been paid by the petitioner.
Subsequently, in the year 2022, the respondent-defendant filed
an application under Section 151 of the Code of Civil
Procedure, 1908 (for short, “the Code”), seeking return of the
original sale deed standing in her name, though the same had
been produced before the court by the petitioner. According to
the respondent, notwithstanding the fact that the sale deed
was registered in her name, the petitioner had fraudulently
obtained its possession from the registering authority. The
petitioner, on the other hand, contended that the sale deed
could not be returned to the respondent, as the suit had been
withdrawn as not pressed on the expectation that the
respondent would act in terms of the settlement.
3. The trial court however held that, in the light of the
principles laid down in Muhammed Master v. Abu Haji [1981 KLT
578] and Philomina Joseph v. State of Kerala [2009 (1) KHC
ICR (OP(C)) Nos.8/2025 & 844/2022
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575], dismissal of a suit as not pressed virtually amounts to
a decision by consent, whereby the contentions raised in the
pleadings stand decided against the plaintiff and in favour of
the defendant, with the consequence that a subsequent claim
would be barred under Order II Rule 2 of the Code.
Accordingly, the court allowed the application, holding that
mere production of a document by a party would not confer upon
him any superior right over the true owner thereof. Aggrieved
by the said order, the petitioner has invoked the supervisory
jurisdiction of this Court under Article 227 of the
Constitution of India.
4. Noticing the specific statutory provisions contained
in Rule 7 of Order XIII of the Code and Rule 132 of the Civil
Rules of Practice, Kerala, the learned Single Judge doubted
the correctness of the view taken by another learned Single
Judge of this Court in the judgment dated 15.06.2022 in O.P.
(C) No.1032 of 2021. In that case, the Court had allowed a
similar application and set aside the order of the trial court
dismissing a request for return of a title deed produced by
the opposite party, which had been rejected on the ground that
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Rule 132 of the Civil Rules of Practice, Kerala, mandated a
contrary course.
5. We have heard Sri. A.S. Shammy Raj, learned counsel
appearing for the petitioner, and Smt. Minimol R., learned
counsel appearing for the respondent.
6. Before examining whether an application of the present
nature is maintainable under Section 151 of the Code, it is
necessary to examine the provisions contained in the Code and
the Civil Rules of Practice, Kerala, governing the return of
documents.
7. Order XIII Rule 7 of the Code deals with the return of
documents not admitted in evidence. It reads thus:
“7. Recording of admitted and return of rejected
documents.—(1) Every document which has been
admitted in evidence, or a copy thereof where a
copy has been substituted for the original under
Rule 5, shall form part of the record of the
suit.
(2) Documents not admitted in evidence shall not
form part of the record and shall be returned to
the persons respectively producing them.”
8. Rule 132 of the Civil Rules of Practice, Kerala,
prescribes the procedure for return of documents which have
neither been admitted nor rejected, as they were not tendered
in evidence. It reads thus:
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“Rule 132. Documents filed but neither admitted
nor rejected to be returned.—
(1) Documents which have been filed in Court but
which have not been tendered in evidence and which
have therefore neither been admitted nor rejected
shall be returned to the person who produced them
as early as possible and, in any case, not later
than the close of the trial.
(2) No application shall be necessary for their
return, but an acknowledgement shall be obtained
in the document list.”
9. The statutory provisions extracted above make it
abundantly clear that a document of the nature referred to
therein is liable to be returned to the person who produced it
and that no application is required to be filed for such
return. In the present case, the document sought to be
returned is admittedly a title deed standing in the name of
the respondent. However, it was produced before the court by
the petitioner and was never tendered in evidence. As noticed
earlier, the suit itself was disposed of in the year 2017 and
the present dispute arose several years thereafter when the
respondent sought return of the said title deed by filing an
application before the trial court.
10. Once the suit is disposed of, the court generally
becomes functus officio , and the scope of enquiry in a
petition of this nature is necessarily limited. Nevertheless,
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the trial court proceeded on the premise that abandonment of
the suit amounted to a decision against the petitioner and in
favour of the respondent, placing reliance on Muhammed Master
and Philomina Joseph . On that basis, the court directed return
of the document to the respondent, holding that the petitioner
could not claim a better right over it.
11. We are unable to find any such proposition flowing
from either of the aforesaid decisions. In Muhammed Master ,
the issue arose in the context of an election petition where
certain allegations relating to corrupt practices were not
pressed by the petitioner. It was in that context that the
Court observed that, by not pressing particular allegations or
grounds raised in the pleadings, a litigant submits that the
issues arising therefrom may be decided against him and in
favour of his opponent. The Court further observed that this
virtually amounts to a decision by consent, inasmuch as the
party concerned concedes that the assertion or dispute raised
by him does not merit consideration, either because he is
unable or unwilling to substantiate the same.
12. In Philomina Joseph , the question that arose was
whether a plaintiff whose suit had been dismissed as not
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pressed, without any adjudication on the merits, was entitled
to refund of one-half of the court fee paid. It was in that
context that the Court held that dismissal of a suit as not
pressed carries with it an implied admission regarding the
claim and that a fresh suit on the same cause of action would
be barred by the provisions of Order II Rule 2 of the Code.
(This decision is later overruled by a larger Bench, in the
context of entitlement for refund of court fee when a suit is
abandoned). None of the principles laid down in the aforesaid
decisions can justify the invocation of the inherent powers of
the Court in the present case in a manner contrary to the
express statutory provisions noticed above.
13. Though Smt. Minimol R., learned counsel appearing for
the respondent, relied upon Murugan & Ors. v. Kesava Gounder
(Dead) through LRs . [O.P.(C) No.844 of 2022] and Kalyanaswamy
v. Bakthavatsalam [(2021) 16 SCC 543] to elaborate the scope
and effect of the bar under Order II Rule 2 of the Code, we do
not find those decisions of assistance in adjudicating the
issue arising in the present case, where the merits of the
rival claims are of little relevance to the limited question
under consideration.
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14. In Ram Chand and Sons Sugar Mills Private Ltd.,
Barabanki (U.P.) v. Kanhayalal Bhargava [AIR 1966 SC 1899],
the Apex Court considered a similar issue. The question was
whether, when the Code expressly confers power on a Civil
Court to strike out the defence of a party under specified
circumstances, the Court can invoke its inherent powers under
Section 151 of the Code to strike out the defence in
circumstances not contemplated by those provisions, namely,
where a party adopts a recalcitrant attitude by defying the
orders of the Court directing his presence for interrogation.
The Supreme Court held that:
“The words of the section appear to be rather
wide. But the decisions of this Court, by
construction, limited the scope of the said
section. In Padam Sen v. State of Uttar Pradesh
[1961 (1) SCR 884 at p. 887], the question raised
was whether a Munsiff had inherent powers under
Section 151 of the Code to appoint a commissioner
to seize account books. This Court held that he
had no such power. Raghubar Dayal, J., speaking
for the Court, observed:
"The inherent powers of the Court are in
addition to the powers specifically conferred
on the Court by the Code. They are
complementary to those powers and, therefore,
it must be held that the Court is free to
exercise them for the purposes mentioned in
S.151 of the Code when the exercise of these
powers is not in any way in conflict with what
has been expressly provided in the Code or
against the intentions of the Legislature. It
is also well recognised that the inherent power
is not to be exercised in a manner which will
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be contrary to or different from the procedure
expressly provided in the Code."
This Court again in Manohar Lal Chopra v. Raja
Seth Hiralal [1962 Supp (1) SCR 450 at p. 461]:
(AIR 1962 SC 527 at p. 533], considered the
question whether a Court had inherent power under
Section 151 of the Code to issue a temporary
injunction restraining a party from proceeding
with a suit in another State. In that context,
Raghubar Dayal, J., after quoting the passage
cited above from his earlier judgment, interpreted
the said observations thus:
"These observations clearly mean that the
inherent powers are not in any way controlled
by the provisions of the Code as has been
specifically stated in S.151 itself. But those
powers are not to be exercised when their
exercise may be in conflict with what had been
expressly provided in the Code or against the
intentions of the Legislature. This
restriction, for practical purposes, on the
exercise of these powers is not because these
powers are controlled by the provisions of the
Code but because it should be presumed that
the procedure specifically provided by the
Legislature for orders in certain
circumstances is dictated by the interests of
justice.
This Court again in Arjun Singh v. Mohindra Kumar
[1964 (5) SCR 946 at p. 968] : [AIR 1964 SC 993 at
p. 1003], considered the scope of Section 151 of the
Code. One of the questions raised was whether an
order made by a Court under a situation to which
Order IX Rule 7 of the Code did not apply, could be
treated as one made under Section 151 of the Code.
Rajagopala Ayyangar, J., made the following
observations:
"It is common ground that the inherent power
of the Court cannot override the express
provisions of the law. In other words, if
there are specific provisions of the Code
dealing with a particular topic and they
expressly or by necessary implication exhaust
the scope of the powers of the Court or the
jurisdiction that may be exercised in relation
to a matter the inherent power of the Court
cannot be invoked in order to cut across the
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powers conferred by the Code. The prohibition
contained in the Code need not be express but
may be implied or be implicit from the very
nature of the provisions that it makes for
covering the contingencies to which it
relates.”
Having regard to the said decisions, the scope of
the inherent power of a Court under S.151 of the
Code may be defined thus: The inherent power of a
Court is in addition to and complementary to the
powers expressly conferred under the Code. But that
power will not be exercised if its exercise is
inconsistent with, or comes into conflict with, any
of the powers expressly or by necessary implication
conferred by the other provisions of the Code. If
there are express provisions exhaustively covering
a particular topic, they give rise to a necessary
implication that no power shall be exercised in
respect of the said topic otherwise than in the
manner prescribed by the said provisions. Whatever
limitations are imposed by construction on the
provisions of S.151 of the Code, they do not
control the undoubted power of the Court conferred
under S.151 of the Code to make a suitable order to
prevent the abuse of the process of the Court.”
This decision has been followed in GLAS Trust Company LLC v.
BYJU Raveendran [(2025) 3 SCC 625], wherein the larger Bench
of the Supreme Court further held that;
“When a procedure has been prescribed for a
particular purpose exhaustively, no power shall be
exercised otherwise than in the manner prescribed by
the said provisions. In such cases, the court must
be circumspect in invoking its 'inherent powers' to
deviate from the prescribed procedure. If such
deviation is made, the court must justify why this
was necessary to "prevent the abuse of the process
of the Court".
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15. In view of the aforesaid authoritative pronouncements
of the Apex Court, and on the facts of the present case, we
are of the view that the trial court was not justified in
passing the impugned order by resorting to Section 151 of the
Code, in the teeth of the specific provisions governing the
return of documents. The order passed by this Court in O.P.(C)
No.1032 of 2021 was rendered in the peculiar facts of that
case, including the absence of any objection from the opposite
party.
16. At the same time, we do not propose to lay down as an
absolute proposition that the inherent jurisdiction of the
court can never be invoked in relation to the custody or
return of documents. Situations may arise where, owing to
exceptional or unforeseen circumstances, a different course
might be required to avert manifest injustice or abuse of the
process of the Court. As held by the Apex Court, the
limitations imposed by construction on the provisions of S.151
of the Code will not control the inherent power of the Civil
Court to make a suitable order to prevent the abuse of the
process of the Court. For making such deviation, the court
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must justify why it was necessary to "prevent the abuse of the
process of the Court”.
17. In view of the above discussion, the impugned order
is liable to be set aside.
In the result, the original petition is allowed by
setting aside the order impugned. The application for return
of the document stands dismissed. However, we make it clear
that the above order will not affect the rights of the
respondent to work out her remedies available under law.
Sd/-
SATHISH NINAN
JUDGE
Sd/-
P. KRISHNA KUMAR
JUDGE
sv
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APPENDIX OF OP(C) NO. 844 OF 2022
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE AGREEMENT FOR SALE DATED
2.2.2009 ENTERED INTO BETWEEN PETITIONER AND
SMT. BHARATHI
Exhibit P2 TRUE COPY OF THE SALE DEED DATED 17.3.2010
EXECUTED IN THE NAME OF RESPONDENT.
Exhibit P3 TRUE COPY OF THE PLAINT IN O.S. NO.922/2013
ON THE FILE OF MUNSIFF COURT, NEDUMANGAD
DATED 15.11.2013
Exhibit P4 TRUE COPY OF THE MEMO DATED 13.7.2016, IN
O.S. NO.922/2013 ON THE FILE OF MUNSIFF
COURT, NEDUMANGAD
Exhibit P5 TRUE COPY OF I.A. NO.1/2022 IN O.S.
NO.922/2013 FILED BEFORE MUNSIFF COURT,
NEDUMANGAD DATED 27.1.2022
Exhibit P6 TRUE COPY OF THE OBJECTION FILED BY THE
PETITIONER HEREIN AGAINST I.A. NO.1/2022 IN
O.S. NO.922/2013 DATED 1.4.2022
Exhibit P7 TRUE COPY OF THE ORDER DATED 7.4.2022 IN I.A.
NO.1/2022 IN O.S. NO.922/2013 ON THE FILE OF
PRINCIPAL MUNSIFF COURT, NEDUMANGAD
Exhibit P8 TRUE COPY OF I.A. NO.5/2022 IN O.S.
NO.922/2013 ON THE FILE OF MUNSIFF COURT,
NEDUMANGAD DATED 18.5.2022
RESPONDENT EXHIBITS
EXHIBIT R1(b) True copy of the petition in I.A No.9/2022 in
O.S.No.922/2013 of Principal Munsiff Court,
Nedumangad
EXHIBIT R1(d) True copy of Common Order dated 3/6/2022 in
I.A.No.5/2022 and IA.9/2022 in
O.S.No.922/2013 of Principal Munsiff Court,
Nedumangad
EXHIBIR R1(e) True copy of the said I.A.No.6/2022 filed by
the petitioner in O.S.922/2013 of Principal
Munsiff Court, Nedumangad
EXHIBIT R1(f) True copy of objection filed by the
respondent in I.A.No.6/2022 in
O.S.No.922/2013 of Principal Munsiff Court,
Nedumangad dated 19/5/22
EXHIBIT R1(g) True copy of the additional objection filed
by the respondent in I.A.No.6/2022 in
O.S.No.922/2013 of Principal Munsiff Court,
Nedumangad dated 24/5/22
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EXHIBIT R1(h) True copy of the order dated 06/06/2022 in
I.A No.6/2022 in O.S.No.922/2013 of Principal
Munsiff Court, Nedumangad
EXHIBIT R1(j) True copy of the Ownership Certificates
issued by the Grama Panchayath, Vithura in
respect of the house and shop rooms dated
10/05/2013
EXHIBIT R1(k) True copy of the Ownership Certificates
issued by the Grama Panchayath, Vithura in
respect of the house and shop rooms dated
10/05/2013
EXHIBIT R1(O) True copy of lease agreements executed by the
respondent dated 4/08/2014
EXHIBIT R1(n) True copy of the land tax receipt dated
16/03/2021 issued by the Village Officer,
Tholicode
EXHIBIT R1(m) True copy of the Possession Certificate
issued by the Village Officer, Tholicode
dated 04/11/2015
EXHIBIT R1(p) true copy of lease agreements executed by the
respondent dated 05/01/2017
EXHIBIT R1(c) True copy of the objection filed by the
petitioner in I.A.No.9/2022 in
O.S.No.922/2013 of Principal Munsiff Court,
Nedumangad
EXHIBIT R1(a) True copy of the objection filed by the
respondent in I.A No.5/2022 in
O.S.No.922/2013 of Principal Munsiff Court,
Nedumangad
EXHIBIT R1(i) True copy of the Ownership Certificates
issued by the Grama Panchayath, Vithura in
respect of the house and shop rooms dated
10/05/2013
EXHIBIT R1(l) True copy of the Ownership Certificates
issued by the Grama Panchayath, Vithura in
respect of the house and shop rooms dated
10/05/2013