IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 29TH AUGUST 2011 / 7TH BHADRA 1933 CRP.No. 413 of 2010() --------------------------- AGAINST THE ORDER DATED 31/03/2010 IN IA 654/2009 IN AS.40/2008 of SUB COURT, PERUMBAVOOR .................... REVN. PETITIONER(S): PETITIONER/APPELLANT/PLAINTIFF: ------------------------------------------------------------------------ P.N.SYAMALA, AGED 48 YEARS, PADMARAGAM HOUSE, RAYAMANGALAM KARA, RAYAMANGALAM VILLAGE. BY ADVS. SRI.E.N.VISHNU NAMBOODIRI SRI.ROY THOMAS (MUVATTUPUZHA) RESPONDENT(S): DEFENDANTS:RESPONDENTS/DEFENDANTS ------------------------------------------------------------------------ 1. RAGHAVAN, AGED 50 YEARS, S/O.NARAYANAN, THEKKUMKATTIL HOUSE ANICADU KARA, MUVATTUPUZHA TALUK - 682 026. 2. ASHOK KUMAR, AGED 42 YEARS, S/O.KRISHNAN, MADANGANICKAL HOUSE, NELLAPPARA KARA, RAMAPURAM VILLAGE, PIN-682 026. R-1 BY ADV. SRI.ELSON SIMON R-2 BY ADV. SRI.PRAMOD KOCHUTHOMMEN.E. THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 29/08/2011, ALONG WITH WPC. NO.12716/2010 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: svs THOMAS P JOSEPH, J. ---------------------------------------- C.R.P.No.413 of 2010 and W.P(C).No.12716 of 2010 --------------------------------------- Dated this 29th day of August, 2011 ORDER This civil revision arises from the order passed by the learned Sub Judge, Perumbavoor on I.A.No.654 of 2009 in A.S.No.40 of 2008, while the writ petition arises from Ext.P7, order dated October 26, 2009 on I.A.No.2280 of 2009 in O.S.No.125 of 1996 of the Court of learned Munsiff, Perumbavoor. Parties are referred as petitioner and respondents as in the C.R.P. 2. Second respondent filed O.S.No.125 of 1996 in the Court of learned Munsiff, Perumbavoor for recovery of possession of property scheduled therein on the strength of title. Against that, petitioner filed O.S.No.625 of 1998 for a declaration that the document (on which the second respondent claimed right) is void, for injunction and other reliefs. Learned Munsiff disposed of the suits jointly. O.S.No.125 of 1996 was allowed and O.S.No.625 of 1998 was dismissed. Petitioner filed appeals against common judgment and decree in the above suits, A.S.No.39 of 2008 arising from the judgment and decree in O.S.No.125 of 1996 and A.S.No.40 of 2008 arising from the C.R.P.No.413 of 2010 and W.P(C).No.12716 of 2010 -: 2 :- dismissal of O.S.No.625 of 1998. A.S.No.39 of 2008 was allowed by judgment dated 29.08.2008 and O.S.No.125 of 1996 was remitted for fresh disposal. A.S.No.40 of 2008 was dismissed by a separate judgment dated 29.08.2008. Following dismissal of A.S.No.40 of 2008, petitioner/appellant filed I.A.No.654 of 2009 for review of the judgment (dismissing A.S.No.40 of 2008) on the ground that his counsel was not heard in that appeal. That application was dismissed by the learned Sub Judge by order dated March 31, 2010 which is under challenge in the civil revision. 3. After remand of O.S.No.125 of 1996 as per judgment in A.S.No.39 of 2008, petitioner filed I.A.No.2280 of 2009 to receive additional written statement and to raise certain contentions. That application was dismissed by Ext.P7, order dated October 26, 2009. Later, O.S.No.125 of 1996 was decreed by the learned Munsiff as per judgment dated 30.11.2009. Ext.P7, order dated October 26, 2009 (in O.S.No.125 of 1996) is challenged in W.P(C).No.12716 of 2010 filed on 08.04.2010. In the meantime, petitioner has challenged the judgment and decree in O.S.No.125 of 1996 in A.S.No.24 of 2010 before learned Sub Judge, Perumbavoor which, I am told is pending decision. C.R.P.No.413 of 2010 and W.P(C).No.12716 of 2010 -: 3 :- 4. It is contended by learned counsel for petitioner that dismissal of A.S.No.40 of 2008 of the Court of learned Sub Judge, Perumbavoor is not justified. According to the learned counsel, petitioner or his counsel was not heard in A.S.No.40 of 2008. It is pointed out by learned counsel that counsel was heard only on I.A.No.480 of 2008 which was an application to condone the delay in filing A.S.No.40 of 2008. Learned counsel has invited my attention to the proceedings of learned Sub Judge in A.S.No.40 of 2008. It is contended by learned counsel that after the delay was condoned, learned Sub Judge was required to admit the appeal under Order 41, Rule 11 of the Code of Civil Procedure (for short, "the Code”) and hear the parties thereafter in the appeal which has not happened. 5. Learned counsel for second respondent has contended that the impugned order on I.A.No.654 of 2009 and the records reveal that counsel were heard in A.S.No.40 of 2008 and in the circumstance, no interference is required with the order on I.A.No.654 of 2009. Learned counsel submitted that it is relevant to note that while petitioner contends that he was not heard in A.S.No.40 of 2008, he has no grievance to the disposal of A.S.No.39 of 2008 by which the appeal was allowed and O.S.No.125 of 1996 was remitted to the learned Munsiff for fresh decision. In the circumstance contention that petitioner or C.R.P.No.413 of 2010 and W.P(C).No.12716 of 2010 -: 4 :- counsel was not heard in A.S.No.40 of 2008 cannot be accepted, it is argued. 6. So far as the writ petition is concerned, learned counsel for second respondent has contended that O.S.No.125 of 1996 was disposed of after remand (pursuant to the judgment in A.S.No.39 of 2008) on 30.11.2009 and that the writ petition is filed only on 08.04.2010 challenging Ext.P7, order dated October 26, 2009 and in the circumstance there is no point in allowing the writ petition and receiving additional written statement. 7. I shall first refer to the question whether petitioner was heard in A.S.No.40 of 2008. True that learned Sub Judge has observed in I.A.No.654 of 2009 (in A.S.No.40 of 2008) that the counsel was heard. I went through the records and find that petitioner had filed I.A.No.407 of 2008 (in A.S.No.40 of 2008) to condone the delay. On 18.08.2008, the contesting respondents filed counter to that application. The said application was heard on 18.08.2008 and was posted on 21.08.2008. It is not clear what happened on 21.08.2008. The next posting was on 29.08.2008. That day, it is recorded on I.A.No.407 of 2008 that the application is allowed vide separate order (that separate order does not mention the date but, from the endorsement on I.A.No.407 of 2008 it is clear that the order was passed on 29.08.2008). It is also seen from the memorandum of appeal in C.R.P.No.413 of 2010 and W.P(C).No.12716 of 2010 -: 5 :- A.S.No.40 of 2008 that the said appeal was dismissed on 29.08.2008, ie. on the day I.A.No.407 of 2008 to condone the delay in filing that appeal was allowed. Obviously, there was no hearing on 29.08.2008 and the only hearing which took place before the learned Sub Judge was on 18.08.2008 and that obviously could have been only on I.A.No.407 of 2008, the application to condone the delay in filing the appeal. Though, the appeal should have been admitted and heard, learned Sub Judge disposed of I.A.No.407 of 2008 on 29.08.2008 and the same day the appeal was dismissed. Hence there is merit in the contention of learned counsel that petitioner was not heard in A.S.No.40 of 2008. Obviously, learned Sub Judge was under a mistaken impression in that the hearing which took place on I.A.No.407 of 2009 was a hearing of the appeal. 8. It is true that A.S.No.39 of 2008 also was disposed of on 29.08.2008 but by allowing the appeal and remanding O.S.No.125 of 1996 to the trial court for fresh decision. 9. Explanation to Rule 17 of Order 41 of Code of Civil Procedure (for short, "the Code”) makes it clear that sub rule (1) of Rule 17 shall not empower the Court to dismiss the appeal on merit (when the appellant does not appear when the appeal is called on for hearing). In that view of the matter, without hearing petitioner/appellant learned Sub Judge could not have C.R.P.No.413 of 2010 and W.P(C).No.12716 of 2010 -: 6 :- dismissed A.S.No.40 of 2008 on merit. But, that explanation will not attract the decision in A.S.No.39 of 2008 since notwithstanding that petitioner was not heard, that appeal was not dismissed, but was allowed by way of remand. Therefore the mere fact of A.S.No.39 of 2008 was allowed by way of remand cannot preclude petitioner from contending that he was not heard in A.S.No.40 of 2008. 10. In the view I have taken I have to hold that dismissal of A.S.No.40 of 2008 is not legal and learned Sub Judge ought to have allowed I.A.No.654 of 2009 and reviewed the judgment in A.S.No.40 of 2008 and given parties opportunity to address arguments in that appeal. 11. Now coming to the writ petition, it is seen that request for filing additional written statement was rejected by the learned Munsiff as per order dated October 26, 2009 on I.A.No.2280 of 2009. I need not go into the correctness of the said order on account of the subsequent developments - that O.S.No.125 of 1996 itself was disposed by granting a decree in favour of the second respondent. Hence what is required is to make it clear that it is open to the petitioner to challenge correctness of dismissal of I.A.No.2280 of 2009 in A.S.No.24 of 2010 if he is otherwise entitled to do so. I am told that pursuant to the judgment and decree in A.S.No.39 of 2008, remand was C.R.P.No.413 of 2010 and W.P(C).No.12716 of 2010 -: 7 :- only in respect of O.S.No.125 of 1996 and A.S.No.24 of 2010 concerns judgment and decree in O.S.No.125 of 1996 (after remand). 12. Since I found that dismissal of A.S.No.40 of 2008 without hearing petitioner is not legal, that appeal has to be heard again. It is appropriate that the said appeal is heard along with A.S.No.24 of 2010 arising from the judgment and decree in O.S.No.125 of 1996. Whether the appeals are to be disposed of simultaneously or jointly is a matter which learned Sub Judge has to decide having regard to he circumstances and after hearing parties also. Resultantly these proceedings are disposed of in the following lines: (i) C.R.P.No.413 of 2010 is allowed. (ii) The order dated March 31, 2010 on I.A.No.654 of 2009 in A.S.No.40 of 2008 of the Court of learned Sub Judge, Perumbavoor is set aside and that application will stand allowed. Learned Sub Judge is directed to consider the admissibility of A.S.No.40 of 2008 as provided under Order 41 Rule 11 of the Code and if the appeal is admitted, dispose of the appeal after giving opportunity to both sides to address arguments. (iii) Since A.S.No.24 of 2010 (arising from the judgment and decree in O.S.No.125 of 1996 C.R.P.No.413 of 2010 and W.P(C).No.12716 of 2010 -: 8 :- of the Court of learned Munsiff, Perumbavoor) is pending before the learned Sub Judge, it is directed that learned Sub Judge may dispose of A.S.No.40 of 2008 (if admitted) along with A.S.No.24 of 2010. Whether the appeals are to be disposed of jointly or simultaneously is a matter which the learned Sub Judge has to decide having regard to the circumstances and after hearing parties. (iv) W.P(C).No.12716 of 2010 is dismissed without prejudice to the right if any, of petitioner to challenge correctness of the order dated October 26, 2009 on I.A.No.2280 of 2009 in O.S.No.125 of 1996 in A.S.No.24 of 2010, under Sec.105 of the Code. (THOMAS P JOSEPH, JUDGE) Sbna/-