IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 24TH JANUARY 2011 / 4TH MAGHA 1932 CRP.No. 47 of 2011 AGAINST THE JUDGMENT DT.30.10.2010 IN CMA.2/2010 OF SUB COURT, PALA I.A.NO.466 OF 2008 IN OS.336/2006 OF MUNSIFF'S COURT, PALA REVN. PETITIONER: APPELLANT/PLANTIFF --------------------------------------- AUGUSTIKUNJU, S/O.OUSEPH, ARACKAPARAMBIL HOUSE, NADAVATHUPARACKAL, MARANGADU KARA, VELLILAPPILLY VILLAGE, RAMAPURAM BAZAR.P.O., PIN-686 576. BY ADV. SRI.ROY CHACKO SRI.K.C.VINCENT RESPONDENTS: RESPONDENTS/DEFENDANTS ------------------------------------- 1. JOHNY, S/O.KUNJAGUSTHY, ERIMATTATHIL HOUSE, MARANGADU, RAMAPURAM BAZAR.P.O., PIN-686 576. 2. BABU, S/O.KUNJAGUSTHY, ERIMATTATHIL HOUSE, MARANGADU, RAMAPURAM BAZAR.P.O., PIN-686 576. 3. FRANCIS @ KUNJAPPAN, S/O.KUNJAGUSTHY, ERIMATTATHIL HOUSE, MARANGADU, RAMAPURAM BAZAR.P.O., PIN-686 576. 4. SAJI, S/O.KUNJAGUSTHY, ERIMATTATHIL HOUSE, MARANGADU, RAMAPURAM BAZAR.P.O., PIN-686 576. THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 24/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ C.R.P. NO. 47 OF 2011 ------------------------------------------------------ Dated this the 24th day of January, 2011 O R D E R The plaintiff in O.S.No.336 of 2006 on the file of the Court of the Munsiff of Pala, challenges the judgment in C.M.A.No.2 of 2010, Sub Court, Pala, by which, the Sub Court confirmed the order passed by the trial court reviewing the judgment and decree passed in the case. 2. The suit was filed by the petitioner/plaintiff against the respondents/defendants for injunction. The respondents filed written statement. The case was listed for trial. On that day, the counsel appearing for the defendants made an undertaking that the defendants have no intention to do any act as alleged by the plaintiff. The court below decreed the suit recording the undertaking made by the counsel appearing for the defendants. In the judgment, the trial court stated thus: C.R.P. NO.47 OF 2011 :: 2 :: “All the defendants counsel undertaken before court that they have no intention to do any act as alleged by the plaintiff. The suit decreed. No costs.” 3. The defendants filed an application, I.A.No.466 of 2008, to review the judgment passed by the trial court. The trial court allowed the Review Petition by the order dated 24.11.2009. The trial court found that there was some mistake of facts and the decree happened to be passed on account of the mistaken submission made by the counsel. It was also noticed that no written undertaking was given by the defendants. The plaintiff filed C.M.A.No.2 of 2010 on the file of the Sub Court, Pala challenging the order passed by the trial court. The appellate court considered the facts in detail. The appellate court held that from the records it is seen that the trial court decreed the suit on a mere submission made by the counsel appearing for the defendants that the defendants have no intention to do any act as alleged by the plaintiff. As rightly noticed by the appellate court, in such circumstances, the suit should have been dismissed recording the undertaking. Instead, the suit was decreed. It was found that there was an error apparent on the face of the record and that there was mistake of fact. C.R.P. NO.47 OF 2011 :: 3 :: 4. The contention raised by the petitioner is that the Review Petition was heard and allowed by another Munsiff and not by the Munsiff who passed the judgment. The Review Petition was heard and disposed of by the successor Munsiff. There was nothing wrong in the Review Petition being heard by the Munsiff who succeeded in office of the Munsiff who passed the judgment. 5. By allowing the Review Petition, the maximum that is caused is that the suit will be heard on the merits. On the other hand, if the Review Petition is not allowed, the defendants would have to suffer a decree which was passed not on the merits but only on the basis of the undertaking made by the counsel. There cannot be any right for the plaintiff to get a decree on a mere undertaking by the counsel for the defendants. If it is found that the undertaking was made on a mistaken fact, the court should undo the wrong and thus render justice to the parties. The court below thought it fit to review the judgment and thus to render justice to the parties. I do not find any ground to interfere with the concurrent findings of fact rendered C.R.P. NO.47 OF 2011 :: 4 :: by the courts below. There is no ground for interference under Section 115 of the Code of Civil Procedure. The Civil Revision Petition is accordingly dismissed. (K.T.SANKARAN) Judge ahz/