IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 4TH AUGUST 2008 / 13TH SRAVANA 1930 CRP.No. 586 of 2008() ------------------------- OS.224/2001 of ADDL.SUB COURT, THALASSERY .................... REVN. PETITIONER: REVIEW PETITIONERS/DEFENDANTS 1, 2, 8 & 9 --------------------------------------------------------------------------- 1. VELIKKAKATH ASSU, S/O.KUNHAMI, AGED 70 YEARS, NO OCCUPATION, VELIKKAKATH HOUSE, JUBILEE ROAD, THIRUVANGAD AMSOM DESOM, THALASSERY TALUK. 2. VELIKKAKATH KACHU, D/O.KUNHAMI, AGED 67 YEARS, NO OCCUPATION, VELIKKAKATH HOUSE, JUBILEE ROAD, THIRUVANGAD AMSOM DESOM, THALASSERY TALUK. 3. V.K.MAMMOOTTY, S/O.AASYA, AGED 57 YEARS, BUSINESS, SAREENAS, MARIAMMA ROAD, THIRUVANGAD AMSOM DESOM, THALASSERY-2. 4. VELIKKAKATH PATHOOTTY, D/O.SAINA, AGED 58 YEARS, NO OCCUPATION, VELIKKAKATH HOUSE, JUBILEE ROAD, THIRUVANGAD AMSOM DESOM, THALASSERY TALUK. BY ADV. SRI.R.SURENDRAN RESPONDENTS:RESPONDENTS/PLAINTIFFS & DEFENDANTS NO.3 TO 7 & LRs: ------------------------------------------------------------------------------------- 1. PARIYAT SUHARA, D/O.MAMOO, AGED 59 YEARS, NO OCCUPATION, RESIDING AT 'LULUS', P.O.MATTAM ROAD, MUZHAPPILANGAD, KANNUR TALUK. 2. P.V.AYISHA, D/O.ABOOBACKER, AGED 49 YEARS, NO OCCUPATION, RESIDING AT 'DARUL NABEEL', COURT ROAD, CHETTAMCOON, THALASSERY. (..2/-) (2) 3. P.V.SUHARA, D/O.ABOOBACKER, AGED 42 YEARS NO OCCUPATION, RESIDING AT 'RAFAHATH MANZIL', GOPAL PETTA, THALASSERY - 2. 4. P.V.RASIA, D/O.ABOOBACKER, AGED 37 YEARS NO OCCUPATION, RESIDING AT 'DELPHINUSOME', GOPAL PETTA, THALASSERY - 2. 5. FATHIMA, W/O.PARIYAT MAHAMOOD, AGED 65 YEARS, NO OCCUPATION, RESIDING AT 'NASARINAS', NEAR REST HOUSE, THALASSERY AMSOM DESOM, KODUVALLY, P.O.THALASSERY. 6. FILSHAD, S/O.PARIYAT MAHAMOOD, AGED ABOUT 43 YEARS, NO OCCUPATION, RESIDING AT 'NASARINAS', NEAR REST HOUSE, THALASSERY AMSOM DESOM, KODUVALLY P.O., THALASSERY. 7. NASRIYA, D/O.PARIYAT MAHAMOD, AGED ABOUT 33 YEARS, NO OCCUPATION, RESIDING AT 'NASARINAS', NEAR REST HOUSE, THALASSERY AMSOM DESOM, KODUVALLY P.O. THALASSERY. 8. JAMEELA.K., W/O.V.K.ALI, AGED 48 YEARS, NOUSHAD HOUSE, PULIKOOL, P.O.PARAL, THALASSERY. 9. JASEELA, D/O.V.K.ALI, AGED 28 YEARS, NOUSHAD HOUSE, PULIKOOL, P.O.PARAL, THALASSERY. 10. NABEESA, D/O.V.K.ALI, AGED 22 YEARS, NOUSHAD HOUSE, PULIKOOL, P.O.PARAL, THALASSERY. 11. NOUSHAD, S/O.V.K.ALI, AGED 21 YEARS, NOUSHAD HOUSE, PULIKOOL, P.O.PARAL, THALASSERY. BY THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 04/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------------ C.R.P. NO. 586 OF 2008 ------------------------------------------ Dated this the 4th day of August, 2008 O R D E R Review petitioners are the defendants 1, 2, 8 and 9 in O.S. 224 of 2001 on the file of Additional Sub Court, Thalassery and respondents are the plaintiffs and other defendants. O.S. 224 of 2001 was instituted by the deceased first plaintiff and first respondent/second plaintiff, the children of deceased Kunhimammu, claiming partition and allotment of their share. As per judgment dated 4.12.2003, Sub Judge granted a preliminary decree finding that plaint schedule property is available for partition and it is to be divided to 24 shares and 11 such shares shall be allotted to plaintiffs. The preliminary decree was not challenged. Petitioners thereafter filed I.A. 700 of 2005, an application under Rule 1 Order XLVII of Code of Civil Procedure to review the judgment. Case of the petitioners was that Kunhimammu, under whom plaintiffs claimed share, died in 1947 while mother Ummacha died only in 1955 and date of death of Kunhimammu was not known to the petitioners when they filed written statement and they, in the written statement, CRP586/08 2 contended that Kunhimammu died in 1948 and Ummacha in 1955 and as no document was produced to prove the date of death, learned Sub Judge found that Kunhimammu died subsequent to the death of Ummacha and therefore found that the plaintiffs are entitled to a share. It was also contended that though it was contended by the petitioners in the written statement that plaint schedule property is a Thavazhi property, no material was produced before the trial Court before passing the preliminary decree to find that it is Thavazhi property. Review petition was filed contending that petitioners could get two material and relevant documents to prove their case and disprove the case of the plaintiffs upheld by the Court. One of the documents which was produced along with the revision petition, is death certificate obtained from the Muncipality showing the date of death of Kunhimammu on 19.1.1947. The other document is registration copy of a settlement deed executed by Ummacha and her children on 25.8.1928 immediately after Ext.A1 Marupat, relied on by the trial Court. It was contended that as these documents could be obtained only subsequent to the preliminary decree they could not have been produced earlier and if those documents were available CRP586/08 3 finding of the trial Court should have been different. Review petition was filed along with a petition to condone the delay in filing the review petition. That delay was condoned, though contesting respondents filed objections. The learned Sub Judge dismissed the review petition firstly for the reason that there is no apparent error on the face of the record and secondly petitioners did not satisfy proviso to sub rule 2 of Rule 4 of Order XLVII of Code of Civil Procedure. This petition is filed under Section 115 of the Code of Civil Procedure challenging the order. 2. Learned counsel appearing for petitioners and contesting respondents were heard. 3. Learned counsel, Advocate Mr. Surendran, appearing for petitioners argued that petitioners were not aware of the date or year of death of Kunhimammu when the written statement was filed or before the decree was passed and only after the decree they could find out the death certificate, which was obtained subsequent to the decree and therefore it is a new and important evidence which establish that the judgment would have been different, if the document was available to the Court. Learned counsel also argued that registration copy of the CRP586/08 4 settlement deed applied for and received by petitioners subsequent to the preliminary decree establish that mother Ummacha herself admitted that plaint schedule property is a Thavazhi property and in such circumstances learned Sub Judge should have reviewed the judgment. 4. Learned counsel, Advocate Mr. Pavithran, appearing for contesting respondents argued that when examined as PW1 complainant admitted that plaint schedule property is available for partition and the share claimed by parties are correct and in such circumstances preliminary decree and judgment cannot be reviewed. The learned counsel also argued that there was no whisper in the judgment about the settlement deed now produced and no evidence was adduced, and if due diligence was shown, the documents could have been obtained before passing the decree, and no review is warranted. The learned counsel also argued that PW1 deposed that Kunhimammu died in 1947 and plaintiffs did not make any attempt to get a copy of the death certificate and therefore this is not a case where with due diligence petitioners could not produce the documents now produced, based on which a review is sought and therefore there is no illegality or irregularity in the impugned order passed by CRP586/08 5 the learned Sub Judge. 5. The plaintiffs are claiming a share in the plaint schedule property as the legal heirs of deceased Kunhimammu, son of Ummacha. It cannot be disputed that whether Kunhimammu pre-deceased the mother Ummacha is a relevant factor which would decide the claim for a share in the plaint schedule property raised by plaintiffs. Learned counsel appearing for petitioners pointed out that eventhough petitioners specifically contended in the review petition that death certificate produced relate to Kunhimammu, the predecessor-in-interest of plaintiffs, no objection was filed contradicting that case and therefore it cannot be disputed that Kunhimammu died on 19.1.1947 while Ummacha admittedly died in 1955. There is force in the submission made by the learned counsel as the contesting respondents did not file a counter disputing the allegations in review petition with regard to that fact. 6. Learned Sub Judge dismissed the application on two grounds. Firstly, it was found that there is no apparent error on the face of the record as the decree and judgment is in accordance with pleadings and evidence. But the learned Sub CRP586/08 6 Judge omitted to take note of the fact that review petition is maintainable even if there is no error apparent on the face of the record, if there are other sufficient reasons. It is evident by the production of new and important evidence, produced subsequent to the date of decree. True, as provided under sub rule 2 of Rule 4 of Order XLVII of Code of Civil Procedure, no application for review shall be granted on the ground of discovery of new matter or evidence, which the applicant alleges was not within his knowledge or could not be adduced by him when the decree or order was passed or made without strict proof of such allegation. No evidence was adduced or recorded by the learned Sub Judge before dismissing the application. Therefore, petitioners did not get opportunity to adduce strict proof of the allegation raised in the review petition. In such circumstances, in the interest of justice petitioners are to be granted an opportunity to prove their case that inspite of exercise of due diligence they could not produce the documents which were not within their knowledge before decree was passed. 7. Therefore the impugned order dated 30.6.2008 is set aside. Review petition I.A. 700 of 2005 in O.S. 224 of 2001 is remanded to Sub Court, Thalassery for fresh disposal in CRP586/08 7 accordance with law. Learned Sub Judge to permit the parties to adduce evidence in the application in support of their case. Learned counsel Advocate Mr. Pavithran submitted that the plaintiffs may be permitted to dispute the documents produced, they are at liberty to do so. The learned Sub Judge to order delivery of the property only after disposal of I.A. 700 of 2005. M. SASIDHARAN NAMBIAR, JUDGE Okb/-