IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 23RD NOVEMBER 2011 / 2ND AGRAHAYANA 1933 FAO.No. 191 of 2011() --------------------- AGAINST THE ORDER DATED 07/04/2011 IN IA 1434/2009 IN AS.197/2008 of V ADDL. DISTRICT COURT, ERNAKULAM .................... APPELLANT/RESPONDENT ---------------------------------------- ULAHANAN,S/O.LATE ULAHANAN, NEERKUZHY KARA,MANEEDU VILLAGE,MUVATTUPUZHA TALUK ERNAKULAM DIST. BY ADV. SRI.T.KRISHNAN UNNI, SENIOR ADVOCATE ADV. SRI.NAVEEN THOMAS ADV. SRI.RENJITH THOMAS RESPONDENTS/PETITIONER & RESPONDENTS 1-8: -------------------------------------------------------------------------- 1. SARAMMA,AGED ABOUT 86 YEARS, W/O.LATE CHACO, KUTTANAL HOUSE, POOTRIKKA KARA, ALIKKARANADU SOUTH,POOTRIKA, ERNAKULAM DISTRICT.PIN.682306 2. SARAKUTTY, AGED ABOUT 48 YEARS, W/O.JOSEPH, MATHOKIL HOUSE, MALLAKUZHI, ERNAKULAM DISTRICT.PIN-682309 3. LEELA, AGED ABOUT 50 YEARS, W/O.SHAJU, NELLIKUNNEL HOUSE, KUNNAPILLY KARA, PERUVA, ERNAKULAM DISTRICT-PIN-682309 4. MARY AGED ABOUT 37 YEARS, , W/O.JOHN,ETTONIL HOUOSE,PAAZHOOR KARA, PIRAVOM, ERNAKULAM DISTRICT,PIN-682306 5. SARAKUTTY AGED ABUOT 57 YEARS, W/O.KUNJAPPAN, AMMATHUKUZHI HOUSE, TIRUVANIYOOR, ERNAKULAM DISTRICT-PIN-682308 6. JOY CHACKO, AGED ABOUT 55 YEARS, S/O.CHACKO,ERUTTUKUZHI HOUSE,MANEED, ERNAKULAM DISTRICT-PIN-682304 --2-- 7. PAULOSE CHACKO, AGED ABOUT 51 YEARS, S/O.CHACKO, ERUTTUKUZHI HOUSE, ERNAKULAM PIN-682308 8. VARGHESE CHACKO, AGED 47 YEARS, S/O.CHACKO, ERUTTUKUZHI HOUSE,MANEED,ERNAKULAM PIN-682308 9. SARAMMA, W/O.LATE ULAHANAN, VEENADATHU HOUSE, NIIRKUZHI KARA, MANEED,ERNAKULAM PIN-682308 FOR R1 ADV. V.R. VINOD KUMAR FOR R2-R4 & R9 BY ADV.SRI.C.R.SANISH THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 23 /11 / 2011 , THE COURT ON 23/11/2011 PASSED THE FOLLOWING: MM FAO.No. 191 of 2011 APPENDIX PETITIONER'S EXHIBITS: NIL RESPONDENT'S EXHIBITS: EXHIBIT R1(A) COPY OF THE PLAINT IN OS NO. 194/2000 ON THE FILE OF THE HONOURABLE MUNSIFFS COURT AT MUVATTUPUZHA DATED 22-03-2000 EXHIBIT R1(B) COPY OF COMPROMISE PETITION DATED 15-11-2008 EXHIBIT R1(C) COPY OF THE JUDGMENT IN AS NO:197/2008 DATED 05-12-2008 EXHIBIT R1(D) COPY OF SALE AGREEENT DATED 18-12-2008 EXHIBIT R1(E) COPY OF EXECUTION PETITION AS EP NO. 40/2009 DATED 23-03-2009 EXHIBIT R1(F) COPY OF THE PLAINT IN OS NO. 155/2009 ON THE FILE OF THE HONOURABLE MUNSIFFS COURT AT MUVATTUPUZHA DATED 30-07-2009 EXHIBIT R1(G) COPY OF THE WRITTEN STATEMNT IN OS NO: 155/2009 ON THE FILE OF THE HONOURABLE MUNSIFFS COURT AT MUVATTUPUZHA DATED 07-09-2009 TRUE COPY P.A. TO JUDGE MM JUSTICE P.BHAVADASAN --------------------------------- FAO No.191 OF 2011 --------------------------------- Dated this the 23rd day of November, 2011 J U D G M E N T Aggrieved by the order in IA Nos.1434/2009 and 1731/2011 in AS No.197/2008 , the 9th respondent before the court below has come up for appeal. By the said order, the court below allowed a review application filed by the first respondent there in. 2. The property involved in the suit originally belonged to one Ulahannan. He had three children, namely Saramma, Aliamma and Ulahannan . Among them, Aliamma is no more. Ulahannan was dealing with the properties after the death of their father, Ulahannan as if it belonged to him. However, the legal heirs of Aliyamma and Saramma instituted a suit for partition , claiming 2/3 rd share over their properties left behind their father, Ulahannan. The suit was decreed. The disappointed defendants carried the matter in appeal as AS NO.24/2003 before the Sub court, Muvattupuzha. 3. It appears that during the pendency of the appeal , 2 partyies compromised the disputes between them and filed a compromise petition before the said court. There was also prayer to make the compromise entered into between the parties as a decree. The prayer was accepted and a decree was passed incorporating the terms of the compromise . 4. A short while there after, the first plaintiff in the suit namely, Saramma filed a review petition stating that the compromise was a result of fraud and misrepresentation and that she had not voluntarily entered into the compromise arrangement. It appears that in the review petition the respondents before the court below had filed a petition to re open the evidence. 5. The court below after taking evidence which consisted of the testimony of PW1 and certain Exts. marked allowed the review petition and dismissed IA NO. 1731/2011 for re opening the evidence. The reason given there, there was considerable laches on the part of the respondents before the court below and from the contrary of the respondents , it was evident that they were adopting delay tactics. 6. It is the above order that is assailed in this appeal. 3 7. The learned counsel appearing for the appellant pointed out that an opportunity ought to have been given to the 9th respondent to adduce the evidence on his behalf since allegations of fraud and misrepresentation were made against him. The learned counsel fairly conceded there might be some laches on his part , but that was unintentional. The learned counsel pointed out that the rejection of the prayer to re-open the evidence has caused considerable prejudice to the 9th respondent. 8. The learned counsel appearing for the respondents in this appeal on the other hand pointed that a perusal of the proceedings of the court below will clearly show that ample opportunities were given to the 9th respondent to adduce evidence which he did not avail of. There is no justification or reasons for this court to interfere with the order impugned in this appeal. 9. It is true that on going through the record and passed by the court below it appears that there has been some lethargy on the part of the 9th respondent . However, the consequences of allowing the petition for review has to be considered. The finding now entered into by the court below is that a fraud has been played on the first plaintiff in the suit who is the petitioner before 4 the court below and that was done by the 9th respondent. As rightly pointed out the learned counsel for the respondent it appears from the records that opportunities were in fact given to the 9th respondent to adduce evidence. But however it does not appear that he had deliberately abstained from doing so. One has to remember here that the compromise petition was signed by the counsel appearing on behalf of the first plaintiff also. 10. Considering the consequences that flow from the impugned order, it is felt that an opportunity ought to be given to the 9th respondent to adduce evidence in support of his contentions raised in the counter affidavit filed before the court below. If at all any injury is caused to the respondent here in that can be compensated by awarding cost. In the result, this appeal is allowed. The impugned order of the trial court is set aside and the matter is remanded to trial court for fresh consideration after affording an opportunity to the 9th respondent to adduce evidence subject to the payment of Rs.5,000/- as cost to the counsel appearing for the contestant respondent before this court within two weeks from today. The parties shall appear before the court below on 07-12-2011. The 5 case shall be posted for evidence of the 9th respondent a week there from and the court below may make every endeavor to dispose of the matter on or before 31-1-2012. Send a copy of this judgment to the lower court also. P.BHAVADASAN. JUDGE MM 6