IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 23RD JUNE 2010 / 2ND ASHADHA 1932 RP.No. 56 of 2010(M) ------------------------ AGAINST THE JUDGEMENT IN OP.11466/1999 Dated 18/01/2008 .................... REVIEW PETITIONERS/LRS OF THE PETITIONER IN OP ----------------------------------------------------------- 1. AYISHA, AGED 60 YEARS, W/O.MOHAMMED, THONDIYIL HOUSE, P.O.NEELANCHERRY, VIA KALIKAVU, MALAPPURAM DISTRICT. 2. SUBAIDA, D/O.-DO-, R/AT -DO-. 3. RUKHIYA, D/O. -DO-, R/AT -DO-. 4. SULAIKHA, D/O. -DO-, R/AT -DO-. 5. KUNHIMOHAMMED, S/O. -DO-, R/AT -DO-. 6. SHAJIMON, S/O. -DO-, R/AT -DO-. 7. SALEENA, D/O.LATE SURFUNNISSA, R/AT -DO- 8. FIROZ BABU, S/O. -DO-, R/AT -DO-. BY ADV. SRI.T.SETHUMADHAVAN SRI.PUSHPARAJAN KODOTH SRI.K.JAYESH MOHANKUMAR SMT.VANDANA MENON SMT.ANJU P.NAIR RESPONDENTS/RESPONDENTS 1-6 IN OP 11466/1999: ------------------------------------------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT, TRIVANDRUM. 2. THE DISTRICT COLLECTOR, MALAPPURAM. 3. THE TAHSILDAR (RR), NILAMBUR (FORMERLY MANJERI). RP NO.56 OF 2010 - 2 - 4. THE VILLAGE OFFICER, THUVVOOR VILLAGE, NILAMBUR TALUK. 5. P.ABDUL NAZAR, S/O.KUNJALI, PUZHAKKAL VEEDU, PANDIKKADU, ERNAD TALUK. 6. THE SUB COLLECTOR, PERINTHALMANNA. R1 TO R4 & R6 BY GOVERNMENT PLEADER SMT.SMITHA SUKUMARAN ADV. SRI.U.K.DEVIDAS FOR R5 THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 23/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.N. RAVINDRAN, J. - - - - - - - - - - - - - -- - - - - - - - - - - - R.P. No. 56 OF 2010 IN O.P. No. 11466 OF 1999 - - - - - - - - - - - -- - - - - - - - - - - - - - Dated this the 23rd day of June, 2010 O R D E R This is an application filed by the legal heirs of the petitioner in O.P. No.11466 of 1999 seeking a review of the judgment delivered on 18.01.2008 dismissing the original petition as infructuous based on the submission made by Sri.T.Sethumadhavan, learned counsel appearing for the petitioner that the original petition has become infructuous. 2. O.P. No.11466 of 1999 was filed by late Thondiyil Mohammed alias Nanippa, husband of the first petitioner herein and father of petitioners 2 to 8. Two items of immovable properties belonging to him were brought to sale and sold under the Kerala Revenue Recovery Act, 1968 at the instance of the Federal Bank for recovery of the money lent and advanced by the said bank to late Thondiyil Mohammed alias Nanippa and his daughter Smt.Sulaikha, the fourth petitioner in the Review Petition. The sale was held on 17.05.1994 and it was confirmed R.P. No. 56 OF 2010 IN O.P. No. 11466 OF 1999 -:2:- in the year1998. The fifth respondent in the original petition was the successful bidder. After the sale was held, the Tahsildar (Revenue Recovery) Manjeri issued Exts.P1 and P1(a) notices dated 25.05.1994 calling upon late Thondiyil Mohammed alias Nanippa to pay the entire amount due to the bank with 5% of the bid amount to avert conformation of the sale. He was also cautioned that if he fails to deposit the entire amount due to the bank together with 5% of the bid amount and other expenses, the sale in favour of the fifth respondent will be confirmed. Instead of complying with the said direction, the petitioner moved the Government and on that application the Government passed an order permitting the petitioner to pay the amounts due to the bank in 40 equal monthly installments. The grievance voiced by the petitioner in the original petition was that notwithstanding the order of the Government, the revenue authorities declined to receive the money tendered by the petitioner and long thereafter issued Exts.P4 and P4-A orders dated 17.12.1998 and 17.10.1998 respectively confirming the R.P. No. 56 OF 2010 IN O.P. No. 11466 OF 1999 -:3:- revenue sale held on 17.05.1994. The original petition was filed on 06.05.1999 challenging Exts.P4 and P4-A sale confirmation orders and seeking consequential reliefs. 3. Though notice was served on the 5th respondent in the original petition, he did not choose to contest the matter. The official respondents contested the writ petition by filing a statement dated 16.06.1999 wherein the sale and its confirmation were justified. It was contended that though the petitioner was given an opportunity to pay the entire amount due in lump, within 30 days from the date of Exts.P1 and P1(a) notices, he did not avail the said opportunity and therefore, as the bidder had deposited the entire bid amount on 17.06.1994, sale in his favour was confirmed. 4. O.P. No.11466 of 1999 came up before me for hearing on 18.06.2006. In the meanwhile the petitioner expired on 22.03.2004. It appears that unaware of the said fact the learned counsel for the petitioner had made a call to the telephone number given by the petitioner at the time of filing of the original R.P. No. 56 OF 2010 IN O.P. No. 11466 OF 1999 -:4:- petition and the person who answered the call (the illiterate wife of the petitioner) informed him that the amount has been remitted and therefore nothing survives in the original petition. On that basis, the learned counsel for the petitioner submitted that the original petition has become infructuous and in the light of the said submission, the original petition was dismissed as infructuous. 5. It is submitted that the said submission was made based on the erroneous instruction given by the illiterate wife of the petitioner who was unaware of the factual details and that it was only thereafter on enquiries made by the other legal heirs of the petitioner that they and the learned counsel for the petitioner realised the mistaken submission made by the learned counsel that the original petition has become infructuous. On this ground the review petitioners who are the legal heirs of the petitioner seek a review of the judgment. The fifth respondent who had not entered appearance in the original petition has filed a counter affidavit objecting to the review petition. R.P. No. 56 OF 2010 IN O.P. No. 11466 OF 1999 -:5:- 6. I heard Sri.T.Sethumadhavan, learned counsel appearing for the review petitioners, Smt.Smitha Sukumaran, learned Government Pleader and Sri.U.K. Devidas, learned counsel appearing for the fifth respondent. On going through the pleadings and after hearing the submissions made at the Bar, I am prima facie satisfied that the learned counsel for the petitioners is justified in submitting that the submission made by him that the original petition has become infructuous was based on the incorrect instructions given to him by the illiterate wife of the petitioner. In such circumstances I am of the considered opinion that the judgment dismissing the original petition as infructuous requires to be reviewed. I accordingly allow the Review Petition and recall the judgment delivered on 18.01.2008 in O.P. No.11466 of 1999. Registry is directed to post the Original Petition as per roster. P.N. RAVINDRAN, JUDGE. ttb R.P. No. 56 OF 2010 IN O.P. No. 11466 OF 1999 -:6:-