IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 30TH JUNE 2009 / 9TH ASHADHA 1931 RP.No. 1233 of 2007() ----------------------------- AGAINST THE JUDGEMENT/ORDER IN CRP.920/2004 DATED 09/04/2007. .................... REVIEW PETITIONER/1ST RESPONDENT --------------------------------------------------------- SOMASEKHARAN NAIR, KUNNATHU VEEDU, AYOOR MURI, EDAMULACKAL VILLAGE. BY MR.K.RAMAKUMAR, SENIOR ADVOCATE ADV. SMT.SARITHA DAVID CHUNKATH MR.A.SAMEER MR.R.JAYACHANDRAN MR.A.MUHAMMED RAFFI RESPONDENTS/REVISION PETITIONER & 2ND RESPONDENT ------------------------------------------------------------------------------------- 1. RADHAMMA B., GANAPATHY VILAKOM VEEDU, POREDOM, VELLUPPARA MURI, CHADAYAMANGALAM VILLAGE, KOLLAM DIST. 2. SASIDHARAN NAIR, KUNNATHU VEEDU, AYOOR MURI, EDAMULACKAL VILLAGE. R1 BY ADV. MR.G.P.SHINOD, MR.K.SURESH BABU (PUNALUR). THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 30/06/2009,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. M.N. KRISHNAN, J. = = = = = = = = = = = = = = R.P. 1233 OF 2007 IN C.R.P. NO. 920 OF 2004 = = = = = = = = = = = = = = = Dated this the 30th day of June, 2009 O R D E R Challenging the two orders of which one is consequential to the other in two different platforms had given raise to all the confusions which is to be resolved in this review. 2. CRP 920/04 was filed against the petition to condone the delay in filing the petition for reviewing the order passed in I.A.1890/03. Or in other words I will refer to the facts as follows: 3. O.S.461/97 was a suit for declaration of title filed by the review petitioner before the Court below. O.S.415/97 was a suit for injunction filed by the review petitioner for a prayer of injunction. It is understood that O.S.461/97 was decreed exparte and O.S.415/97 was dismissed for default. In order to set aside the exparte decree in O.S.461/97 an application I.A.1055/01 was filed. It was dismissed on R.P. 1233 OF 2007 IN C.R.P. NO. 920 OF 2004 -:2:- 19.6.2002. To review that order with a petition to condone the delay in filing the R.P. I.A.1889 and 1890 of 2003 were filed. I.A.1889/03 was to review the order and 1890/03 was to condone the delay in filing the R.P. It is submitted that both these applications were allowed by the Court. Aggrieved by the decision in I.A.1890/03, CRP 920/04 was filed by the review petitioner and aggrieved by the decision in I.A.1889/03, FAO 54/04 was preferred before the Subordinate Judge, Kottarakkara. By the order dated 9.4.07 I had allowed C.R.P. 920/04 and meanwhile now it is brought to my notice that by order dated 26.11.09 the appeal filed by the review petitioner against the order in I.A.1889/03 was dismissed. So a very difficult situation had arisen whereby the petition to condone the delay has been dismissed by this Court whereas the appeal filed against the order allowing the review has been dismissed by the Subordinate Judge. There cannot be such an order in a Court of law for the reason that it amounts to conflicting decisions which will not have any R.P. 1233 OF 2007 IN C.R.P. NO. 920 OF 2004 -:3:- effect of law. Now it is under these circumstances we are to find out a solution for the same. Unfortunately the order in FAO 54/04 was not brought to the notice of the Court when CRP 920/04 was taken up for disposal. Now as things stand since the review petition is allowed it will show I.A.1055/01 is in fact alive and it is submitted that I.A. 1055/01 is allowed by the Court below. If so, then the question of considering of I.As.1889/03 and 1890/03 would not arise at all. Therefore the review petition can be disposed of by reviewing the impugned judgment dated 9.4.2007 as follows. (1) In case I.A.1055/01 is allowed then there is no purpose in entertaining I.A.1889 and 1890/03 at this stage and let the suit be proceeded with in accordance with law. (2) If I.A.1055/01 is not restored to file already, then the Court below shall consider I.As.1889/03 and 1890/03 afresh by allowing opportunities to both the sides to forward their respective contentions as well as evidences in the petitions. Thereafter the Court shall dispose of the matter in R.P. 1233 OF 2007 IN C.R.P. NO. 920 OF 2004 -:4:- accordance with law. I also make it very clear the decision in O.S.415/97 may not be taken as a ground to allow or reject for the reason the present suit is a comprehensive suit which goes to the root of the matter and affects the right of the parties. M.N. KRISHNAN, JUDGE. ul/-