IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 16TH DECEMBER 2011 / 25TH AGRAHAYANA 1933 OP(C).No. 4120 of 2011(O) ------------------------------------- LAR.13/2008 of SUB COURT, MAVELIKKARA .................... ORIGINAL PETITIONER(S): -------------------------------------- 1. OMANAYAMMA B., THUNDIL HOUSE, PATHIYOORKKALA, PATHIYOOR, 2. RETNAMMA B, NAREENCHIYIL HOUSE, CHINGOLI P.O.,KARTHIKAPALLY 3. RADHAKRISHNAN.D, THUNDIL HOUSE, PATHIYOORKKALA, PATHIYOOR, 4. SRIDEVI O, CHAMPAKUNNATHU HOUSE,,KARUVATTA P.O.,HARIPPAD BY ADV. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SMT.NAVA VARGHESE SRI.MANU SEBASTIAN RESPONDENT(S): ---------------------------- 1. STATE OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR, ALAPPUZHA 688 001. 2. SOUTHERN RAILWAYS REP.BY THE DIVISIONAL RAILWAY MANAGER, THIRUVANANTHAPURAM 695 001. R1 BY GOVT. PLEADER SRI.P.I.DAVIS THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 16/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss OP(C) NO.4120/2011 APPENDIX PETITIONER(S) EXHIBITS EXT.P1:- COPY OF DECREE DTD 20/9/2008 IN LAR NO.13/08 ON THE FILE OF THE SUB COURT, MAVELIKKARA EXT.P2:- COPY OF JUDGEMENT DTD 20/9/2008 IN LAR NO.13/08 ON THE FILE OF THE SUB COURT, MAVELIKKARA EXT.P3:- COPY OF IA.NO.2186 OF 2008 IN LAR NO.13 OF 2008 ONTHE FILE OF THE SUB COURT, MAVELIKKARA EXT.P4:- COPY OF ORDER DTD 6/12/2008 PASSED IN IA -2186/08 ARISING OUT OF LAR NO.13/2008 OF THE SUB COURT,MAVELIKKARA. RESPONDENTS' EXHIBITS NIL:- TRUE COPY P.A. TO JUDGEMENT tss THOMAS P. JOSEPH, J. ---------------------------------------- O.P(C).No.4120 of 2011 --------------------------------------- Dated this 16th day of December, 2011 JUDGMENT Learned Government Pleader appears for first respondent. Standing counsel appears for the second respondent. 2. Challenge is to the order dated 06.12.2008 on I.A.No.2186 of 2008 in L.A.R.No.13 of 2008 of the Court of learned Sub Judge, Mavelikkara. Petitioners are legal representatives of deceased claimant. His property was acquired and his claim was referred to the Civil Court. Learned Sub Judge took the reference on file as L.A.R.No.13 of 2008. Learned Sub Judge by order on 20.09.2008 answered the reference holding that original claimant is not entitled to any enhanced compensation over and above land value given by the Land Acquisition Officer as original claimant was not represented on 17.03.2008 and no evidence was let in. That was followed by the original claimant filing I.A.No.2186 of 2008 for review stating that reference was answered without notice to him. Learned Sub Judge dismissed that application by Ext.P4, order dated 06.12.2008. That order is under challenge. O.P(C).No.4120 of 2011 -: 2 :- 3. It is submitted by learned counsel that clerk of the advocate was entrusted with responsibility to inform the original claimant about development of the case, that clerk fell ill and was diagnosed to be suffering from cancer towards middle of 2009. He died on 22.10.2009. Original claimant died on 10.06.2010. It is thereafter that petitioners/legal representatives made enquiry and learned about the order on reference and dismissal of the application for review. It is prayed that the impugned orders may be set aside and petitioners may be given opportunity to pursue the claim for enhanced compensation. 4. Learned Government Pleader and counsel for second respondent contended that reference was answered by Ext.P2, judgment dated 20.09.2008, application for review was dismissed by Ext.P4, order dated 06.12.2008 and it is long thereafter that the original petition is filed. 5. No doubt there is delay in filing the application for review. Moreover it is also seen that reason stated by the original claimant for seeking review is found not correct by the learned Sub Judge. It is not disputed that property belonging to the original claimant was acquired for the second respondent and on his claim, a reference was made to the Civil Court. I do not O.P(C).No.4120 of 2011 -: 3 :- find reason to think that original claimant would have purposefully kept out from the court without adducing evidence in support of his claim. I am inclined to think that petitioners should be given an opportunity to prosecute the claim. But respondents cannot be saddled with the liability to pay interest on any account during the time the reference stood dismissed. Resultantly this original petition is allowed. Ext.P4, order dated 06.12.2008 on I.A.No.2186 of 2008 in L.A.R.No.13 of 2008 of the Court of learned Sub Judge, Mavelikkara is set aside and that application will stand allowed. In consequence Ext.P2, judgment dated 20.09.2008 in L.A.R.No.13 of 2008 will stand reviewed subject to the condition that in case enhanced compensation is allowed to the petitioners, they shall not be entitled to claim and get interest on any account for the period from 20.09.2008 till this day. Parties shall appear before the learned Sub Judge, Mavelikkara on 23.01.2012. (THOMAS P. JOSEPH, JUDGE) Sbna/-