IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 25TH MARCH 2010 / 4TH CHAITHRA 1932 WP(C).No. 3597 of 2010(O) ------------------------------------- [OS.NO.6/2005 OF ADDL.SUB COURT,KOLLAM] .................... PETITIONER: ------------------- BHADRAN.R., S/O. RAMAN, KAVILAYIL VEEDU, KUREEPUZHA CHERRY, KOLLAM. BY ADV. SRI.B.SURESH KUMAR. RESPONDENTS: ------------------------ 1. NAZARUDEEN, S/O. IBRAHIM KUTTY, NAZIRA MANZIL, ACKOLIL CHERRY, ERAVIPURAM, KOLLAM. 2. UDAYAPRAKASH, S/O. BHADRAN, KAVILAYIL VEEDU, KUREEPUZHA CHERRY, KOLLAM. 3. SREEDEVI, W/O. UDAYAPRAKASH, KAVILAYIL VEEDU, KUREEPUZHA CHERRY, KOLLAM. BY THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/03/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.3597/2010-O: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE JUDGMENT DTD. 28/11/2005 IN O.S. NO.6/2005 PASSED BY THE ADDITIONAL SUBORDINATE JUDGE'S COURT, KOLLAM. EXT.P.2; COPY OF THE DECREE DTD 28/11/2005 IN O.S. NO. 6/2005 PASSED BY THE ADDITIONAL SUBORDINATE JUDGE'S COURT, KOLLAM. EXT.P.3: COPY OF E.A. NO. 174/2009 IN E.P. NO. 360/2006 IN O.S. NO. 6/2005 DTD. 16/03/2009 FILED BY THE R.1. BEFORE THE SUBORDINATE JUDGE'S COURT, KOLLAM. EXT.P.4: COPY OF THE SETTLEMENT DEED DTD. 19/06/1991, EXECUTED BY THE PETITIONER IN FAVOUR OF RESPONDENTS 2 AND 3. EXT.P.5: COPY OF THE CLAIM PETITION E.A. NO. 336/2009 IN E.P. NO. 360/2006 IN O.S. NO.6/2005 DTD. 24/06/2009 FILED BY THE PETITIONER BEFORE THE SUBORDINATE JUDGE'S COURT, KOLLAM. EXT.P.6: COPY OF THE OBJECTION DTD. 13/10/2009 FILED BY THE R.1. BEFORE THE SUBORDINATE JUDGE'S COURT, KOLLAM. EXT.P.7: COPY OF THE CHIEF AFFIDAVIT DTD. NIL. FILED BY THE PETITIONER BEFORE THE SUBORDINATE JUDGE'S COURT, KOLLAM. EXT.P.8: COPY OF THE RESTORATION PETITION E.A. NO. 105/2010 IN E.P. NO. 360/2006 IN O.S. NO. 6/2005 DTD. 01/02/2010 FILED BY THE PETITIONER BEFORE THE SUBORDINATE JUDGE'S COURT, KOLLAM. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. Prv. P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C). No. 3597 of 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 25th day of March, 2010. JUDGMENT This is a petition filed under Article 227 of the Constitution of India seeking the following reliefs: “(i) A direction to call for the entire records in E.A. 336/2009 in E.P. 360/2006 in O.S.6/2005 on the files of the Subordinate Judge's Court, Kollam and restore possession of the decree schedule building and property from where he was forcibly evicted on 2.2.2010. (ii) a direction to call for the entire records in E.A. No.336/2009 in E.P. No. 360/2006 in O.S. No.6/2005 on the files of the Subordinate Judge's Court, Kollam, and direct the court below to issue carbon copy of the order forthwith. (iii) a direction to call for the entire records in E.A.No. 105/2010 in E.P. No.360/2006 in O.S.7/2005 on the file of the Subordinate Judge's Court, Kollam and direct the court WPC.3597/2010. 2 below to consider E.A. 105/2010 and restore E.A. 335/2009 and consider the matter on merits.” 2. In O.S. 6 of 2005, by judgment and decree dared 28.11.2005 the Additional Sub Court, Kollam passed an ex parte decree, which is marked as Ext.P2. The decree schedule property was brought to sale and the same was purchased by the decree holder. The sale certificate dated 12.3.2009 was issued to the decree holder. The decree holder then sought delivery by filing E.A. 174 of 2009 before the Sub Court, Kollam. Copy of the same is marked as Ext. P3. 3. Petitioner would point out that the judgment debtors are husband and wife and the petitioner is the father of the first judgment debtor. The plaint schedule property originally belonged to the petitioner and by settlement deed dated 19.6.1991 the right over the property and the building was transferred in favour of the judgment debtors, retaining the right to resident in the house and to take yield from the property. Copy of the settlement deed is produced as WPC.3597/2010. 3 Ext.P4. On coming to know about the attempt to dispossess the petitioner from the property, the petitioner filed a claim petition before the Sub Court, Kollam pointing out that the petitioner cannot be dispossessed from the property as he has life interest over the property. Copy of the claim petition is produced as Ext.P5. Petitioner points out that along with the claim petition, he had produced the settlement deed for perusal of the court. Objection was taken to the petition by the first respondent. Copy of the objection is produced as Ext.P6. 4. Petitioner would point out that the court below posted the case for evidence on 1.2.2010. On that day counsel for the petitioner prayed for time. The grievance is that without giving an opportunity to the petitioner, the claim petition was dismissed and delivery of the property was ordered. On the same day, it is claimed that the restoration petition was filed and requested for recalling the order passed. No orders were passed on the restoration petition. Copy of the same is produced as Ext.P8. On WPC.3597/2010. 4 2.2.2010 it is stated that the petitioner was dispossessed from the building and the property by force. Petitioner is aged 80 and was removed from the house with the aid of police. 5. Petitioner would point out that the court below was not justified in dismissing his claim petition especially when it contended that the petitioner has life interest over the property. The petitioner has filed restoration petition and the same is pending. It is also pointed out that without considering the restoration petition, the case was posted for delivery on the very next day and delivery was effected. 6. Learned counsel appearing for the petitioner points out that court should not have been in a haste to pass order of delivery. There is no justification for the act of the court. Counsel for the petitioner had brought to the notice of this court that the restoration application was filed on the very same day and he was represented by his counsel. There is no reason to disbelieve him. According to the learned counsel the restoration petition should have been WPC.3597/2010. 5 allowed and the claim petition should have been decided on merits. 7. In the light of the allegations in the writ petition a report from the Principal Sub Court, Kollam is called for. The learned Sub Judge has filed a report. Almost all the facts are admitted. It is true that the report shows that the case was posted on 5.1.2010 with a direction that no further time will be granted. on 5.1.2010 at the request of the claimant, the case was posted to 1.2.2010 for evidence with a direction that no further time will be granted. On 1.2.2010 the claimant was absent. The report says that time was prayed for adducing evidence. Since the case was posted as N.F.T., according to learned Judge, an application ought to have been filed and since there was no application and only an oral request, it was rejected. The claimant was called absent and the claim petition was dismissed and the case was posted for delivery to 2.2.2010. In the report it is stated that the learned Sub Jude was not aware of the filing of the restoration petition on 1.2.2010. According to him at WPC.3597/2010. 6 the time of roll call nothing was mentioned about the filing of the chief affidavit. It is also pointed out that the chief affidavit is not seen in the case file. It is also stated that the restoration petition was filed after 2.30 p.m. on 1.2.2010, which can be seen from the endorsement. It was placed before him on 2.2.2010 at the time of roll call. It was posted for objection and hearing to 27.2.2010. It is stated that as there is provision for restitution even if delivery was effected, no prejudice will be caused to the claimant and so delivery was ordered on 2.2.2010. 8. One can only say that the act of the learned Judge is quite unfortunate, unkind and uncalled for. It is clear from the report itself that there was representation for the petitioner on 1.2.2010 and that the counsel had prayed for time for evidence. Even assuming that the prayer was made without filing a petition, the court should have granted time to the petitioner and it is unfortunate on the part of the court to dismiss the claim petition merely on the ground that there was no written application. The court WPC.3597/2010. 7 could have directed the petitioner to file a petition for adjournment. No specific provision is pointed out to show that the petitioner should file a petition seeking adjournment. More objectionable is the conduct of posting the case for delivery on 2.2.2010 itself. It can be seen from the report that during the roll call on 2.2.2010 it was brought to the notice of the learned Judge that restoration petition had been filed, atleast at that point of time he should have acted as is expected of a Judge, and the consolation now given to the petitioner by the learned Judge is that if he is dispossessed, he can seek restitution. One can only say that such an observation is ridiculous. The act of throwing out the petitioner from the building and the property without considering the claim petition is something which cannot be accepted and is contrary to law. The document by which right was claimed was before court. 9. This is a case, where grave injustice has been done to the petitioner. It is to be noticed that inspite of WPC.3597/2010. 8 notice served on the respondents in this writ petition, they have not chosen to enter appearance. It is therefore ordered that the petitioner shall be put back in possession forthwith and his claim petition shall be taken up and dispose it of as expeditiously as possible at any rate within two weeks from the date of receipt of a copy of this judgment. Registry shall send the copy of the order immediately to the court concerned. P. BHAVADASAN, JUDGE sb.