IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 18TH FEBRUARY 2010 / 29TH MAGHA 1931 CRP.No. 580 of 2009() -------------------------------- CA.367/2009 IN EP.517/1999 IN LAR.437/1987 of III ADDL.SUB COURT, ERNAKULAM .................... REVN. PETITIONERS/PETITIONERS 4,5,7 TO 10 IN THE CHEQUE APPLICATION: ------------------------------------------------------------------------------------------------------------------- 1. MR.WILFRED CLARENCE, S/O.LATE MARTIN CLARENCE, NOW RESIDING AT A/2 LOUKAPAVAN CO-OPERATIVE HOUSING SOCIETY LTD., SMT.GLADIS ALVARIS ROAD, THANE WEST (POKRAN NO.II), MAHARASHTRA. 2. MRS.GLADYS G.THOMAS, D/O.LATE MARTINE CLARENCE, RESIDING AT A/W.,LOUKAPAVAN CO-OPERATIVE HOUSING SOCIETY LTD., GLADIS ALVARIS ROAD, THANE WEST (POKEN NO.II) MAHARASHTRA. 3. MR.DARAL CLARENCE, S/O.LATE MARTINE CLARENCE, NOW RESIDING AT 301, DURGHESWARI TOWER, ANTON FRANCIS ROAD, NEXT TO KAY ANAND HOSPITAL, CHERAI-THANE WEST- 400 604, MAHARASHTRA. 4. GEORGE BRITTO, S/O.LATE VARKEY, AGED 60 YEARS, RESIDING AT FLAT NO.502, 5TH FLOOR VIRAJ VIHAR, OPP. MAKKMALI TALAD, THANE WEST, MUMBAI-400 601. 5. MRS.BESSY THANKACHAN, W/O.THANKACHAN, AGED 58 YEARS, NOW RESIDING AT FLAT NO.101, NEW BHAVESH APPARTMENTS, A WING, NAVGHAR ROAD, OPP.MAYUR PARK, BHAYANDER (E) THANE DISTRICT, MAHARASHTRA. 6. MRS.BRINDA STANLEY, W/O.STANLEY, AGED 56 YEARS, RESIDING AT A 6/6, FIRST FLOOR, FLAT NO.22, GEEVAN SHANTI SAGAR SOCIETY, GEEVAN BHEEMA NAGAR, NEAR SHANTI ASHRAM, BONI VILLOW, MUMBAI-400 103. BY ADV. SRI.JIMMY JOHN VELLANIKARAN CRP.No. 580 of 2009 RESPONDENTS/RESPONDENTS 1 AND 2 IN CHEQUE APPLICATION & 6TH PETITIONER IN THE CHEQUE APPLICATION: ------------------------------------------------------------------------------------------------------------ 1. STATE OF KERALA, REPRESENTED BY DISTRICT COLLECTOR, ERNAKULAM, COLLECTORATE, KAKKANAD. 2. THE GREATER COCHIN DEVELOPMENT AUTHORITY, KADAVANTHARA, COCHIN-20. 3. MR.EDWARD CLARENCE, S/O.LATE MARTINE CLARENCE, ROYAL PARK, 7291, LOWIRLLA HEIGHTS, MISSISSAUGA, OUTARIO L5N814, CANADA. R1 BY GOVERNMENT PLEADER R2 BY ADV. MR.S.B.PREMACHANDRA PRABHU. R3 BY ADV. MR.K.J.ANTONY (KANIAMPARAMPIL). THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. P.BHAVADASAN, J. ------------------------------------- CRP No.580 of 2009-D ------------------------------------- Dated 18th February 2010 Order Aggrieved by the dismissal of Cheque Application No.367/2008-09 in EP No.517/99 in L.A.R. No.434/87, the petitioners before the Court below have come up in revision. 2. Martin Clarence and Janet Varkey were joint decree holders in the land acquisition proceedings in the above said case. Martin Clarence died on 10.11.1997 after the decree was passed. Janet Varkey died on 8.12.2006. Petitioners 1 to 3 and the third respondent herein are the legal representatives of the first decree holder - Martin Clarence and petitioners 4 to 6 are the legal heirs of the second decree holder - Janet Varkey. Smt.Maize Clarence, W/o.Martin Clarence and the mother of petitioners 4 to 6 died on 15.03.2005. 3. As per the decree, compensation was granted to Martin Clarence for 13.50 ares of land and 42.70 ares of nilam and for Janet Varkey, compensation was awarded for 3.4 ares of land and 8.70 ares of nilam. After the decree, Martin Clarence died on 10.11.1997 and so, EP No.517/99 was filed, impleading CRP 580/09 2 his legal representatives. In the EP, the liability of the judgment debtors was fixed at Rs.26,73,120/- as on 21.10.2003 and the decree amount was deposited in a garnishee proceedings. Thereupon, the Cheque Application was filed for Rs.26,73,120/-. When that application was pending, it seems that the second judgment debtor filed WP(C) No.28360/04 before this Court, challenging the method adopted regarding appropriation of part payments. This Court by Judgment dated 3.9.2008, remanded the case for fresh consideration. 4. After remand, the Court below reconsidered the matter and refixed the liability as Rs.18,41,511/08. Thereafter, a fresh Cheque Application was filed as CA No.367/08-09 with the legal representatives of both the first and second decree holders, on the party array. Though the third petitioner in the application - Maize Clarence had died on 15.3.2005, by mistake, she was not shown as dead in the cause title. So, a petition was filed to note the death of Maize Clarence. The Court below directed to adduce evidence regarding legal representatives of the second decree holder Janet Varkey as she died after the EP was closed. So, PW1 who is the son of Janet Varkey was examined to prove the legal representatives of late Janet Varkey. But, the Court below, CRP 580/09 3 without considering the evidence of PW1, dismissed the Cheque Application with the observation that sufficient proof was not adduced to prove the legal representatives. The said order is assailed in this CRP. 5. The Court below has obviously omitted to note the evidence furnished by PW1, which is clear on the aspect regarding the legal representatives of Janet Varkey. So, there is no justification for dismissing the Cheque Application. Accordingly, this revision petition is allowed. The impugned order is set aside and the Court below is directed to reconsider Cheque Application No.367/08-09 in EP 517/99 IN LAR 434/1987 as expeditiously as possible, at any rate, within two weeks from the date of receipt of a copy of this order. In the impugned order passed by the Court below, the number of LAR is shown as 437/87, which may be corrected to read as LAR 434/1987. P.BHAVADASAN, JUDGE sta CRP 580/09 4 CRP 580/09 5