IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 24TH JANUARY 2011 / 4TH MAGHA 1932 RP.No. 44 of 2011() --------------------------- AGAINST THE JUDGEMENT/ORDER IN OP(C)NO.245/2010 Dated 01/12/2010 .................... REVIEW PETITIONER(S): IST RESPONDENT --------------------------------------------------------------- PALERI SASIDHARAN,S/O.KUTHOOR KRISHNAN, AGED 45 YEARS,VAYAKKARA AMSOM AND DESOM, CHEERKKAD.P.O,PADIYETCHAL,KANNUR DISTRICT. BY ADV. SRI.T.MADHU RESPONDENT(S): PLAINTIFF & 2ND RESPONDENT ------------------------------------------------------------------------- 1. D.GANAPATHI SHENOY,AGED 47 YEARS, S/O.LATE G.DAMODARAN SHENOY,ANANDA BHAVAN, VAYAKKARA AMSOM AND DESOM,PADIYETCHAL, KANNUR DISTRICT,PIN-670 307. 2. THEKKEVEETTIL THAMBAI, AGED 53 YEARS, W/O.LATE BHASKARAN,VAYAKKARA AMSOM DESOM, CHEERKKAD.P.O,PADIYETCHAL,KANNUR DISTRICT, PIN-670 307. BY THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 24/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts THOMAS P JOSEPH, J. ---------------------------------------- R.P.No.44 of 2011 in O.P(C).No.245 of 2010 --------------------------------------- Dated this 24th day of January, 2011 ORDER This petition is for review of judgment dated December 1, 2010 in O.P(C).No.245 of 2010. As per that judgment, original petition filed under Article 227 of the Constitution was allowed setting aside the impugned order and it was directed that Ext.P5, application would stand allowed. Learned Munsiff was directed to appoint an Advocate Commissioner and Surveyor to identify plaint A and B schedule properties with reference to the relevant records as may be directed by the learned Munsiff. On 01.01.2011 petitioner who is respondent No.1 in the original petition has filed this petition seeking review of the said judgment on the ground that on getting notice in the original petition, review petitioner filed vakalath through counsel on November 2, 2010, the registry did not note any defect in the vakalath and it was accepted. But, unfortunately in the cause title dated 01.12.2010 name of counsel of the review petitioner was not shown and therefore there happened to be no representation R.P.No.44 of 2011 -: 2 :- when the original petition was heard and disposed of on December 1, 2010. It is also stated that the suit itself was dismissed for default on the date of judgment sought to be reviewed and hence original petition was not maintained. The further contention is that in the circumstance of the case this court was not correct allowing Ext.P5, application and appointing a survey commission for identification of plaint A and B schedules. 2. I have heard learned counsel for petitioner. Learned counsel asserted the above points and placed reliance on the decisions in Abdul Khader Vs. Surburban Chit (P) Ltd (2006 (1) KLT 749) and Abdul Razak Vs. Mangesh Rajaram Wagle (2010 (1) KLT S.N 33 (Case No.42) SC). 3. In the last of the decision cited by learned counsel, the Supreme Court considered the scope of application of Articles 226 and 227 of the Constitution as regards interference with orders of subordinate courts and stated the circumstances under which the High Court could interfere. In the former decision learned Judge of this court again considered the scope of Article 227 of the Constitution and held that parties shall not be under the impression that any latches on their part would be condoned by a superior court. Learned counsel invited my attention to the R.P.No.44 of 2011 -: 3 :- observations in paragraphs 6 and 7 of the decision. 4. While the original petition was disposed of on December 1, 2010 I noted that though petitioner (and respondent No.2 in the original petition) were served, there was no response. Regarding that, it is submitted that petitioner had filed his vakalath on November 2, 2010 registry did not note any defect in the Vakalath and it was accepted. Case list dated December 1, 2010 did not mention the name of counsel for petitioner in the review petition. I am inclined to accept that statement and hear petitioner in the review petition on the merit of the contention to decide whether even then a review of the judgment dated December 1, 2010 is required. 5. Respondent No.1/plaintiff and others sued for decree for prohibitory injunction claiming that plaint A schedule belongs to him as per document No.473 of 1988 and that plaint B schedule way also belongs to him which was formed by purchasing 1.5cents each as per sale deed Nos.1317 and 1320 of 1994. He contended that on the north and south of plaint B schedule, there are compound walls and petitioner and respondent No.2 are residing on the south of plaint B schedule. Respondent No.1/plaintiff prayed for a decree for prohibitory injunction restraining petitioner and respondent No.2 from R.P.No.44 of 2011 -: 4 :- negotiating vehicles through the demolished portion of plaint B schedule and for other reliefs. Petitioner contended that the properties are not identifiable and that respondent No.1 has no right over plaint B schedule. It was also contended that compound wall on the south of plaint B schedule belonged to the petitioner. 6. Learned counsel points out, the case was originally passed in the list on 05.10.2010 on which day, petitioner was present in court. But, respondent No.1/plaintiff got the case adjourned to 08.10.2010 claiming that the case is not included in the special list. Ext.P5, application (in the original petition) is filed requesting to depute an advocate commissioner with the assistance of surveyor to identify plaint B schedule in the light of the contentions raised by petitioner in his written statement. That application was dismissed by Ext.P6, order which was challenged in O.P(C).No.245 of 2010. 7. This court observed that it is not as if a survey commission was not essential as if there was no dispute regarding identity of the property. Petitioner in his written statement has specifically contended that respondent No.1 has no right over plaint B schedule and that the compound wall on the south of plaint B schedule absolutely belonged to him. In such a R.P.No.44 of 2011 -: 5 :- situation, to resolve the dispute involved in the case it was necessary to get the property surveyed through a survey commission. It is in the above circumstances that notwithstanding that there was some latches on the part of respondent No.1 in not preferring the application at the appropriate stage this court was inclined to allow Ext.P5, application and set aside Ext.P6, order. 8. It is not as if there was that much latches on the part of respondent No.1 in conducting the case so that in a suit of this nature and having regard to the contentions raised by the parties respondent No.1 should have been denied opportunity to get the property surveyed as requested for in Ext.P5. It is in the above circumstances that the original petition was allowed as per judgment dated December 1, 2010. 9. No doubt, petitioner was not heard at the time the original petition was disposed of as per judgment dated December 1, 2010 but, having heard learned counsel for petitioner on the merit of the case and having regard to the circumstances stated above, I do not find reason to order a review of the judgment for the mere formality to hear the petitioner further on the original petition which I have now done. It is contended by learned counsel that on the date the original R.P.No.44 of 2011 -: 6 :- petition was disposed of, the suit was dismissed for default. But, learned counsel in fairness conceded that later the suit was restored to file. It is lastly requested by learned counsel that learned Munsiff may be directed to expedite trial of the case. Having regard to the circumstances learned Munsiff is directed to expedite the proceedings. This petition is dismissed with the above direction. (THOMAS P JOSEPH, JUDGE) Sbna/- /True Copy/ P. A to Judge