IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 4TH NOVEMBER 2011 / 13TH KARTHIKA 1933 RP.No. 482 of 2011() ------------------------- AGAINST THE JUDGEMENT/ORDER IN AS.722/2000 .................... REVIEW PETITIONER/RESPONDENT ------------------------------------------ THOMAS,S/O.CHAKALAIKAL DEVASSY, POYYAKARA,POYYA VILLAGE, KODUNGALLLOOR TALUK - 680 733. BY ADVS. SRI.B.RAMACHANDRAN SMT.K.B.REKHA RESPONDENT(S): APPELLANT ---------------------------------- ANTONY,S/O.CHAMAKATTU VAZHAPPILLY GEEVARGHESE,PUTHENVELIKKARA,PARUR TALUK 683 594. ADV. SRI.P.R.VENKETESH THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 04/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: svs P.BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - C.M.A.No. 792 of 2011 AND R.P.NO.482 OF 2011 IN A.S.No.722 of 2000 - - - - - - - - - - - - Dated this the 4th day of November, 2011 O R D E R This is a petition filed under Section 5 of the Limitation Act seeking to have the delay of 245 days condoned in filing a review petition. 2. In the affidavit in support of the petition it is stated that the judgment of this Court was pronounced on 21.07.2010 and copy application filed on 05.08.2010, certified copy was delivered on 10.08.2010 and the review petition had to be filed on or before 25.08.2010. 3. The petitioner would say that he was unaware of the true purport of the judgment of this Court and he had no information about the actual content of the judgment. It was only after getting notice from the sub-court regarding the petition said to have been filed by the respondent herein that he came to know about the content of the :2: C.M.A.No. 792 of 2011 judgment. To his surprise he found that his counsel had made a concession, which according to him was not authorized by him. It is also pointed out that the submissions made by the appellant before this Court was totally false and contrary to the facts. It was by misrepresenting the facts that an order was obtained from this Court in the appeal. It is pointed out in the petition that there was no willful laches or negligence in not filing the review petition within the time and the delay had occurred due to reasons beyond his control. It was therefore pointed out that the delay be condoned and the review petition be taken on file. 4. A counter affidavit has been filed by the respondent wherein he narrates in detail what transpired in the time of hearing of the appeal and how the appeal culminated in the order which is now sought to be reviewed. It is pointed out that it is significant to notice that a counsel who has filed the review petition is not the counsel who had appeared for the petitioner in the appeal and therefore it is not possible :3: C.M.A.No. 792 of 2011 for the present counsel to assert as to what actually transpire in the Court on the day on which the judgment was pronounced. 5. The counter affidavit in detail narrates the facts which made the respondent herein to make a plea for sympathetic consideration. The court accepted an arrangement i.e. a compromise which was accepted by the parties stated through their respective counsel. It is further submitted that since petitioner did not act on the basis of judgment of this Court, the respondent has filed a petition under Section 28 of Specific Reliefs Act on 16.02.2011. According to the counter affidavit no sufficient cause or reason is shown for the delay and it is very evident from the affidavit in support of the delay petition that the present petition is only a after thought to get over the petition filed by the respondent before the court below. Relying on the decision reported in Kunhabdulla V. Prakasan 2008(4) KLT 286. it is pointed out that this Court had occasion to deprecate the practice of another counsel filing a review :4: C.M.A.No. 792 of 2011 petition than the counsel who was appearing for the party in the proceedings. 6. The learned counsel appearing for the petitioner pointed out that soon after the decree was passed he had deposited the entire sale consideration and it was only after he received notice in the petition filed by the respondent herein that he came to know about the contents of the judgment passed by this Court in A.S.No.722 of 2000. The learned counsel pointed out that it could not be imagined that a person who had deposited the entire sale consideration would accept such a compromise and concede to what has been stated in the judgment. The learned counsel pointed out that the respondent has other properties which he deliberately concealed from this Court and had managed to obtain the judgment of which the review is now sought for. 7. The learned counsel appearing for the respondent on the other hand pointed out that there is no merit in any of these contentions because the respondent had filed :5: C.M.A.No. 792 of 2011 I.A.No.4512 of 2008 in A.S.No.722 of 2000 before this Court pointing out that the plights and state of affairs and praying for a sympathetic consideration of the case. A counter affidavit dated 04.06.2010 was filed by the present petitioner to that I.A. The judgment which was sought to be reviewed was passed on 21.07.2010, that is long after the I.A. and counter had been filed. There is no whisper in the counter in the I.A. that any of the averments in support of the petition was false or incorrect. 8. Strictly speaking it may not be necessary to go into the merits of the review petition at the time of considering the petition to condone the delay. However the reasons given for condoning the delay do not appear to be convincing and acceptable. It is admitted that the petitioner was aware that a judgment had been passed by this Court and he was informed about the same by the counsel on the very same day of judgment itself. It is stated in the affidavit in support of the petition to condone the delay that certified copy was delivered on 10.08.2010. It is too difficult to :6: C.M.A.No. 792 of 2011 believe that the petitioner would not have been keen to know the contents of the judgment especially when he claim that he had deposited the entire sale consideration before the court below and was waiting for a decree in his favour. The further claim that he thought of looking into the judgment only after he received a notice on a petition said to have been filed by the respondent seeking to rescind the contract that he had come to know about the false statement contained in the judgment regarding the concessions said to have been made by him and conveyed by his counsel. It is too difficult to believe. It is important to notice that the date on which he received the notice regarding the petition filed by the respondent herein is also not mentioned in the affidavit. Admittedly the certified copy of the judgment is delivered on 10.08.2010 and this petition has been filed only on 25.06.2011. A person who was keen to get the property assigned, would have, as soon as he was informed about the delivery of the judgment, would have made every effort to get a copy of the same and have the :7: C.M.A.No. 792 of 2011 decree executed. The reasons given for the delay are therefore totally unacceptable. 9. In order to ascertain the grievance for the petitioner regarding the judgment passed by this Court, the counsel for the appellant was asked to address the merits of the review petition also. With the view in the mind that if there is a real grievance for the petitioner this Court can consider the delay condonation petition sympathetically. 10. According to the learned counsel for the review petitioner, no concession was made from his side and submission by his counsel before this Court that the suggestion made by the court has been accepted by the parties is false. In support of this claim it is pointed out that a person who has deposited the entire sale consideration soon after a decree was passed by the trial court could not have acceded to the suggestions made by his counsel. Or in short, the contention is that the concession seems to have been made before this Court was without authority. :8: C.M.A.No. 792 of 2011 11. It is difficult to accept the above claim. On going through the records it is found that there were a number of postings for the case after the suggestion was made for the first time regarding a compromise by this Court. This Court had considered all the aspects and thereafter suggested the parties to ascertain whether they could arrive at a compromise. Thereafter this Court went on to pass the judgment, review of which is now sought for. It is unnecessary to dilate on except to extract the relevant portion of the judgment of this Court which reads as follows:- Thereafter I persuaded the learned counsel appearing for both the sides to arrive at a compromise and I suggested that a portion can be assigned in favour of the plaintiff and remaining can be retained by the defendant. Learned counsel appearing for both the sides well co-operated with the matter and they had also consulted their client about the same. 12. It was thereafter that this Court with slight modifications to the suggestions made, had passed the judgment under review. This Court also expressed its :9: C.M.A.No. 792 of 2011 appreciation for the assistance rendered on both sides in bringing about a compromise regarding the issue involved in the suit. 13. When these are the facts ,it is difficult to accept the present claim made by the petitioner that the concession that is seen to have been made by his counsel was without his authority. One may recollect that in the affidavit in support of the I.A.4512of 2008, the petitioner therein, who is the respondent herein, had narrated the entire facts which prompted him to seek the leniency and sympathy of this Court in the matter. A counter affidavit was filed in which the material averment in the affidavit are not seen controverted. Even as on today the learned counsel for the review petitioner was unable to point out the date on which the respondent said to have acquired the extent of land as claimed by him now. 14. It is appropriate at this time to refer to the decision reported in Kunhabdulla V. Prakasan 2008(4) KLT 286. While deprecating the practice of a new counsel :10: C.M.A.No. 792 of 2011 filing a review petition this Court observed as follows:- Apex Court in Raju Reddiar's case (supra) deprecated the practice of filing review petition by another counsel. It was held that the Review Petition was filed in that case by another counsel, who neither argued the appeal nor was present at the time of arguments and it is unknown on what basis he has written the grounds in the Review Petition as if it is a rehearing of an appeal against the order and review petitioner did not confine to the scope of review. It was also held that the counsel did not produce a no objection certificate from the previous counsel and attempt is to reargue the matter. Their Lordships on the facts and circumstances of that case held:- “This practice of changing the advocates and filing repeated petitions should be deprecated with a heavy hand for purity of administration of law and salutary and healthy practice.” That petition was dismissed with exemplary costs. Finding that it is an abuse of process of court in derogation of healthy practice. 14. In the light of the statement seen in the judgment of this Court, it is extremely difficult to accept the plea now put forward by the review petitioner that the concession or the compromise that was suggested and accepted was without his authority. If this practice is encouraged there would never be an end to a litigation. This Court has been careful enough to notice while disposing of the appeal, that the submissions were made before this Court after :11: C.M.A.No. 792 of 2011 consultation with the parties. That observation will have to be given due weight and importance. It is not shown to be otherwise. Apart from the fact that there are no sufficient reasons to condone the delay, on merits also, there are no reasons to review the judgment of this Court. Accordingly delay petition is dismissed and consequently the review petition is also dismissed. However the petitioner will be at liberty to apply to the court below regarding the amount deposited by him while considering the petition said to have been filed by the petitioner. P.BHAVADASAN, JUDGE kkj