IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 30TH SEPTEMBER 2009 / 8TH ASWINA 1931 WP(C).No. 21770 of 2009(O) -------------------------- CMA.97/2007 of II ADDL. DISTRICT COURT, TRIVANDRUM O.S.NO.18 OF 1994 OF SUB COURT, ATTINGAL. ..... PETITIONER(S): ------------------------ 1. ALTHAF, RESIDING AT THEKKECHAYAKKARU VILAKOM VEEDU, EDAVA VILLAGE, EDAVA DESOM, THIRUVANANTHAPURAM DISTRICT. 2. NEBEESA BEEVI, IN -DO- -DO- 3. NAZIMUDEEN, IN -DO- -DO- 4. SUMMAYA, IN DO -DO- BY ADVS. MR.K.JAYAKUMAR, MR.P.B.KRISHNAN. RESPONDENT(S) IN WP: ------------------------------------ 1. NASEEMA BEEVI, HAJI VEEDU, EDAVA VILLAGE, EDAVA DESOM, THIRUVANANTHAPURAM DISTRICT. 2. SHAHIDA BEEVI, IN DO DO. 3. PAREETHUKUNJU NOUSHAD, IN DO DO. R1 & R2 BY ADV. MR.D.KISHORE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.21770/2009 O APPENDIX PETITIONER'S EXHIBITS: P1: DATED 28/07/2007, ORDER N I.A.429/2007 IN O.S.18/94 SUB COURT,ATTINGAL. P2: DATED 15/11/2008, JUDGMENT IN CMA 97 OF2007, ADDL.DISTRICT COURT II, THIRUVANANTHAPURAM. P3: DATED 5/06/2009, I.A.373/09 IN CMA 7/2007, ADDL.DISTRICT COURT II, THIRUVANANTHAPURAM. P4: DATED 30/06/2009, COPY OF THE ORDER OF THE ADDL.DISTRICT JUDGE II, THIRUVANANTHAPURAM IN I.A.NO.373 OF 2009 N CMA NO.97 OF 2007. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.21770 of 2009 - O --------------------------------- Dated this the 30th day of September, 2009 J U D G M E N T Writ petition is filed seeking the following reliefs: i) To set aside Ext.P4 in exercise of the supervisory jurisdiction of this Honourable Court under Article 227 of the Constitution of India. ii) To pass an order allowing I.A.No.373/2009 in C.M.A.No.97/2007 on the file of the II Additional District Court, Thiruvananthapuram.” 2. Petitioners, four in number are some of the respondents in C.M.A.No.97 of 2007 on the file of the II Additional District Court, Thiruvananthapuram. That appeal was preferred by the plaintiffs in O.S.No.18 of 1994 on the file of the Sub Court, Attingal, seeking a decree of partition of the plaint schedule properties. That suit happened to be dismissed for default. An application moved by the plaintiffs for restoration of the suit was also turned down. Against the order dismissing the application for restoration, plaintiffs filed the above appeal. The appeal was disposed by the learned District Judge vide Ext.P2 judgment recording that the counsel who appeared for the contesting respondents in the appeal fairly conceded that they W.P.(C).No.21770 of 2009 - O 2 have no objection in disposing the suit on its merits. Plaintiffs was then mulcted with liability to pay cost of Rs.2,000/- to the respondents as a condition precedent for restoration of his suit. Cost was also directly paid to the counsel appearing for the respondent, presumably, in the open court at the time of hearing of the appeal. However, later, a review petition was filed by the petitioners before the same court contending that there was no concession by the counsel and so much so, there was a factual error in the judgment rendered by the court, which demand review or correction. Ext.P3 is the copy of the review petition so filed. The learned District Judge, after hearing the counsel on both sides dismissed the review petition vide Ext.P4 order. Propriety and correctness of Ext.P4 order is challenged in the writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 3. I heard the counsel on both sides. 4. After having heard the counsel on both sides at length and taking note of the facts and circumstances presented, I find as no affidavit had been filed by the counsel who appeared for the respondents to substantiate the case canvassed by the petitioners no impropriety or illegality can be imputed against the W.P.(C).No.21770 of 2009 - O 3 order of the court. After the cost has been received by the counsel in the open court, the case canvassed by the petitioners for review of the order contending that there was no concession by the counsel for disposal of the suit on merits cannot be countenanced. Further more, on the facts presented, the suit being one for partition it is needless to point out the right of the plaintiffs to seek partition is no way affect despite the dismissal of the suit for default so long as the tenancy in common over the property remained uninterrupted. Probably, the plaintiff wanted to avoid taking and completing the steps for service and the timelag thereof in seeking the restoration of the suit, dismissed for default, which was instituted as early as in 1994. I do not wish to express any further comments on the application moved by the respondents seeking review of the orders passed on concession which exface would indicate the defendants wanted to prolong the proceedings on one ground or other. There is no merit in the writ petition, and it is dismissed. S.S.SATHEESACHANDRAN, JUDGE. bkn/-