IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 21ST OCTOBER 2010 / 29TH ASWINA 1932 CRP.No. 552 of 2010() --------------------- LAR.220/2003 of SUB COURT, CHERTHALA .................... REVN. PETITIONERS/ PETITIONERS/LEGAL HEIR OF THE CLAIMANTS: ------------------------------------------------------------ 1. SANKARAN POTTI, VALEZHATHU MADOM, PALLIPPURAM P.O., CHERTHALA. 2. VASUDEVAN POTTI, -DO- -DO- BY ADV. SMT.JEENA JOSEPH SRI.G.D.PANICKER RESPONDENTS/ CR.PETITIONERS/RESPONDENTS: ----------------------------------------- 1. STATE OF KERALA REPRESENTED BY DISTRICT COLLECTOR, ALAPPUZHA, 688 001. 2. MANAGING DIRECTOR, KSIDC, THIRUVANANTHAPURAM, PIN 695 001. GOVERNMENT PLEADER: ADV.SRI.B JAYASURYA THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 21/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- C.R.P.No.552 of 2010 --------------------------------------- Dated this 21ST day of October, 2010 ORDER Learned Government Pleader takes notice for respondents. Heard both sides. 2. Petitioners have today produced a true photocopy of the legal heir certificate dated 07-11-2006 issued by the Tahsildar, Cherthala and a copy of the reference order. 3. According to the learned counsel 9.71 ares of dry land belonging to one Easwaran Venkiteswaran Potti (claimed to be known as Naryanan Venkiteswaran Embran also as learned counsel states) was acquired by the State and the Land Acquisition Officer passed an award on 16-09-2000. Not satisfied with the compensation awarded, the said Easwaran Venkiteswaran Potti made a request to refer the matter to the civil court under Section 18 of the Kerala Land Acquisition Act (for short, “the Act”). Accordingly a reference was made and learned Sub Judge, Cherthala took the reference on file as L.A.R.No.220 of 2003. For the reason of absence of claimant reference was closed on 18-06-2004. Thereafter petitioner No.1 claiming to be one of the legal heirs of Easwaran Venkiteswaran C.R.P.No.552 of 2010 : 2 : Potti (original claimant) filed I.A.Nos.810 and 809 of 2004 for restoration of the reference case (closed on 18-06-2004) and to implead him as additional claimant. While those applications were pending petitioners filed I.A.Nos.344 of 2009 and 343 of 2009 again for restoration of the reference case (closed on 18-06-2004) and for condoning the delay of 1701 days in filing I.A.No.344 of 2009 computing the period of limitation from 18-06-2004. Learned counsel states that in the affidavit in support of I.A.No.344 of 2009 it was stated that I.A.Nos.809 and 810 of 2004 are being withdrawn since petitioner No.2 who is also a legal heir along with petitioner No.1 (who filed I.A.Nos.809 and 810 of 2004) was not impleaded as a claimant in the said applications. Learned Sub Judge dismissed I.A.Nos.343 and 344 of 2009 as per orders dated August 13, 2010. Application to condone the delay was dismissed for the reason that petitioners though bound to explain each days' delay have not done so. Consequent to that, I.A.No.344 of 2009 was dismissed. The orders dated August 13, 2010 are under challenge in this petition. Learned counsel for petitioners contend that the orders under challenge are bad in law. According to the learned counsel fact that I.A.Nos.809 and 810 of 2004 were filed within time though later withdrawn was not taken into account by the C.R.P.No.552 of 2010 : 3 : learned Sub Judge. 4. From the copy of certificate of legal heirship dated 07-11-2006 issued by the Tahsildar and produced in this court today it is seen that Easwaran Venkiteswaran Potti who according to the learned counsel is the original claimant expired on 02-05-2002 and petitioners are shown to be his legal heirs being his brothers. Reference was closed on 18-06-2004. Admittedly, none of the legal representatives of the original claimant were impleaded in the proceeding before reference was closed on 18-06-2004. In other words, if the argument of petitioners were to be accepted decision of learned Sub Judge on the reference case closign it on 18-06-2004 being with the deceased sole claimant on the party array and without his legal representatives on record can only be treated as a nullity in which case, question of restoration of the reference case closed on 18-06-2004 did not arise. What was required for the legal representatives of the deceased original claimant was to file an application under Section 151 of the Code of Civil Procedure (for short, “the Code”) to reopen the reference case on the ground that the decision on 18-06-2004 closing the reference case for the reason above stated is a nullity. Instead, successive applications were filed for restoration. However, having regard to the facts C.R.P.No.552 of 2010 : 4 : and circumstances of I.A.No.344 of 2009 though styled as one for restoration of the reference case (closed on 18-06-2004) can be treated as an application for reopening the case under Sec.151 of the Code. Doing so will only advance the cause of justice. I do not think it necessary at this stage to close I.A.No.344 of 2009 and direct petitioners to seek reopening of the reference. Instead, I.A.No.344 of 2009 can be treated as one for reopening the reference case closed on 18-06-2004. If it is a case of reopening the case on the ground that order on 18-06-2004 is a nullity, no question of limitation is also involved. Of course, petitioners may have to explain the reason for their not filing the application within the reasonable time. I.A.Nos.343 of 2009 can be treated as an application intended to explain why petitioners have not chosen to seek reopening of the case within a reasonable time. But I must bear in mind that petitioner No.1 had filed I.A.Nos.809 and 810 of 2004 immediately after the case was closed and those applications were pending when I.A.Nos.343 and 344 of 2009 were filed. In the light of what I have stated above, order dated 13-08-2010 on I.A.Nos.343 and 344 of 2009 are set aside and those applications are remitted to the court of learned Sub Judge for fresh consideration and decision in the light of the C.R.P.No.552 of 2010 : 5 : observation made above. I direct petitioners to produce the relevant documents before the learned Sub Judge to show that they are legal representatives of the deceased original claimant Easwaran Venkiteswaran Potti @ Narayanan Venkiteswara Embran. Parties shall appear in the court of learned Sub Judge on 16-11-2010 (THOMAS P JOSEPH, JUDGE) Sbna/-