IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 7TH OCTOBER 2010 / 15TH ASWINA 1932 WP(C).No. 21432 of 2010(O) -------------------------- IA NO.903/2010 INOS.775/2003 of PRINCIPAL MUNSIFF COURT,ERNAKULAM .................... PETITIONER(S): PLAINTIFF ------------------------ SUBRAMANIYAN, AGED 55 YEARS, S/O. MADHAVAN, VANPARAMBIL THRIKKANARVATTOM, ERNAKULAM. BY ADV. SRI.N.K.MOHANLAL RESPONDENT(S): DEFENDANT ------------------------ GOPINADHAN, AGED 42 YEARS, S/O.MADHAVAN, PANNAPPILLY PARAMBU, S R M ROAD, KOCHI-682012. ADV. SMT.R.RANJINI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C0 NO.21432/2010 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF REVIEW PETITION FILED BY PETITIONER EXT.P2 TRUE COPY OF ORDER IN IA 903/2010 IN OS 775/2003 OF PRINCIPAL MUNSIFF COURT, ERNAKULAM EXT.P3 TRUE OPY OF THE OBJECTION FILED BY RESPONDENT TO FINAL DECREE APPLICATION //TRUE COPY// THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.21432 of 2010 -------------------------------------- Dated this the 7th day of October, 2010. JUDGMENT This petition is at the instance of petitioner/plaintiff No.2 in I.A.No.903 of 2010 in O.S.No.775 of 2003 of the court of learned Principal Munsiff, Ernakulam. There is a preliminary decree followed by an application for passing a final decree for partition of plaint B schedule. In the course of final decree proceeding Advocate Commissioner inspected the property and submitted a report effecting division of the property (around three cents). Filing objection to the division of property made by the Advocate Commissioner, respondent wanted the entire property to be sold in public auction. Petitioner filed I.A.No.8680 of 2009 under Section 3 of the Partition Act offering to purchase share of respondent. That application was objected by the respondent who, in turn filed I.A.No.645 of 2010 seeking to purchase the share of petitioner. Matter came up for hearing before the learned Munsiff on 28.01.2010. That day learned Munsiff passed the impugned common order dismissing I.A.No.8680 of 2009 and allowing I.A.No.645 of 2010. To review that common order petitioner filed Ext.P1 (I.A.No.903 of 2010). That application was dismissed by the learned Munsiff. Hence this Writ Petition. It is contended by learned counsel that the parties were not heard on I.A.No.8680 of 2009 and 645 of 2010. It is also contended that respondent who had suggested public auction of the property has preferred I.A.No.645 of 2010 to purchase share of petitioner and that application has WP(C) No.21432/2010 2 ultimately been upheld by the learned Munsiff. Learned counsel for respondent contended that there is nothing wrong in allowing I.A.No.645 of 2010. It is pointed out that Ext.P1, application is filed to review a common order. 2. True that a single application has been filed to review the common order but that is only an irregularity, at any rate. It is not disputed that parties were not heard on I.A.Nos.8680 of 2009 and 645 of 2010. What the learned Munsiff has stated is that the junior advocate of counsel for petitioner was present and even if the matters were heard there would not have been a different order. That view, I am unable to accept. Question is not whether learned Munsiff would have passed a different order on hearing counsel on both sides. Petitioner contended that he was not given an opportunity to address arguments on the applications and that his application should have been preferred to the application filed by the respondent. In the circumstances I am inclined to give an opportunity to both sides to address their arguments on the applications. Resultantly this petition is allowed in the following lines: i. Ext.P2, order on I.A.No.903 of 2010 in O.S.No.775 of 2003 of the court of learned Principal Munsiff, Ernakulam is set aside and that application will stand allowed. WP(C) No.21432/2010 3 ii. Consequently the common order dated 28.01.2010 on I.A.Nos.8680 of 2009 and 645 of 2010 also is reviewed and those applications are remitted to the court of learned Principal Munsiff, Ernakulam for fresh decision after hearing counsel on both sides. ` THOMAS P.JOSEPH, Judge. cks