IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 25TH MAY 2011 / 4TH JYAISHTA 1933 RP.No. 333 of 2011(O) AGAINST THE JUDGEMENT IN OP(C) NO.892/2011 Dated 06/04/2011 REVIEW PETITIONER: PETITIONER: ---------------------- SIVASANKARAN,75 YEARS,S/O.KUMARAN, G-11, ARUNODAY VILLAGE ROAD, NEAR USHA NAGAR, BHANDUP,BOMBAY, NOW RESIDING AT PANIKKETTY HOUSE, NATTIKA P.O, THRISSUR-680 566. BY SENIOR ADVOCATE SRI.V.CHITAMBARESH SRI.DILIP J. AKKARA RESPONDENT: RESPONDENT: --------------- RAJAGOPALAN,S/O.KUMARAN, PANIKKETTY HOUSE,NATTIKA P.O, THRISSUR-680 566. PARTY IN PERSON THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 25/05/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ R.P.NO. 333 OF 2011 IN O.P.(C). NO. 892 OF 2011 ------------------------------------------------------ Dated this the 25th day of May, 2011 O R D E R The grievance of the review petitioner is that, while disposing of the Original Petition, all the contentions raised by the review petitioner were not taken note of by the Court. It is also submitted that the application in which the impugned order was passed by the court below is barred by res judicata in view of the dismissal of another application filed by the respondent for the same relief. 2. The suit is for partition. Rajagopalan (the respondent) filed the suit claiming one-fourth share. A preliminary decree was passed as per Ext.P1 judgment dated 18.3.1989. The claim of the second defendant for equity/reservation in respect of a house allegedly constructed by him was negatived by the trial court. The second defendant filed appeal. The Appellate Court granted equity in favour of the second defendant in respect of the house, after finding that the house was constructed with the funds of the second defendant and R.P.NO.333 OF 2011 :: 2 :: that the other co-owners did not contribute any money for the construction of the house. The plaintiff filed S.A.No.747 of 1993, which was disposed of as per Ext.P2 judgment dated 18.3.1994, confirming the judgment and decree of the District Court. It was held that the learned District Judge was justified in holding that the disputed house and the land appurtenant thereto have to be set apart to the share of the second defendant, as far as possible, at the time of final decree. 3. In the final decree proceedings, the plaintiff filed I.A.No.1773 of 1997 for an injunction restraining the second defendant from forcibly evicting the plaintiff from the house. That application was dismissed as per the order dated 4.8.1997 (Ext.P3). Ext.P3 order shows that the application relates to an injunction to restrain the respondents therein from taking income from the decree schedule property. That was not the prayer in that application. Aggrieved by the order in I.A.No.1773 of 1997, the plaintiff filed C.M.A.No.301 of 1998 on the file of the District Court, Thrissur. There was delay in filing the appeal. The application for condonation of delay was dismissed by the learned District Judge as per Ext.P4 R.P.NO.333 OF 2011 :: 3 :: order dated 7.8.1998. Later, the plaintiff filed I.A.No.1216 of 2004 for an injunction restraining defendants 2 and 3 from causing obstruction to the peaceful residence of the plaintiff in the house in question. In I.A.No.1216 of 2004, the court below passed an order dated 24.2.2011, which was challenged by the second defendant in O.P.(C) No.892 of 2011. The order passed by the court below shows that the respondents in the application (defendants 2 and 3) were not ready to argue the application and they sought adjournment. The court below passed an ad interim order and posted the case to 2.6.2011 for a detailed hearing. O.P.(C) No.892 of 2011 was dismissed on the ground that the court below did not finally dispose of I.A.No.1216 of 2004 and only an ad interim order was passed, in the circumstances stated in the order. The second defendant has filed this Review Petition, aggrieved by the order dated 6.4.2011 in O.P.(C) No.892 of 2011. 4. The learned senior counsel appearing for the review petitioner submitted that the present application filed by the second defendant is barred by res judicata. He submitted that the principles of res judicata would apply even to different stages of the same R.P.NO.333 OF 2011 :: 4 :: litigation. It is submitted that the court below did not consider this aspect of the matter while passing the order. It is submitted that had the court below taken into account the previous orders in the proceedings and the facts and circumstances of the case, the order impugned in O.P.(C) No.892 of 2011 would not have been passed. 5. The respondent in the Review Petition appeared in person. He submitted that the principles of res judicata will not apply. I.A.No.1773 of 1997 was filed by the plaintiff for an injunction restraining defendants 2 and 3 from evicting the plaintiff from the house. The court below did not consider that request on the merits. The court below passed Ext.P3 order dismissing I.A.No.1773 of 1997, erroneously thinking that the application was for an injunction restraining defendants 2 and 3 from taking income. The respondent (Rajagopalan) submitted that res judicata would apply when a decision was rendered on the merits. No decision was rendered by the Court earlier in point of time on the merits of the prayer for injunction restraining defendants 2 and 3 from evicting the plaintiff from the house. Technically speaking, I.A.No.1773 of 1997 was dismissed and the appeal therefrom was dismissed on the ground of R.P.NO.333 OF 2011 :: 5 :: delay. The respondent submits that it would not operate as res judicata, in so far as the present application is concerned. 6. Learned senior counsel appearing for the review petitioner submitted that the preliminary decree in O.S.No.390 of 1984 is no longer in existence in view of the preliminary decree passed in a subsequent suit (O.S.No.192 of 1990, Munsiff's Court, Chavakkad). He also submitted that the subsequent preliminary decree was confirmed in S.A.No.586 of 1999. The counsel also submitted that equity has been provided in respect of the houses in favour of defendants 2 and 3. The respondent (Rajagopalan) submitted that he has filed a Review Petition against the judgment in S.A.No.586 of 1999 and the same is pending. 7. The court below did not dispose of the application (I.A.No.1216 of 2004) on the merits by passing a final order. An ad interim order was passed and the case was directed to be posted to 2.6.2011 for detailed hearing. Both the parties would be entitled to put forward their respective contentions before the court below. In the peculiar facts and circumstances of the case, I direct the court R.P.NO.333 OF 2011 :: 6 :: below to take up I.A.No.1216 of 2004 on 2.6.2011 itself for final hearing. It is submitted by the review petitioner and the respondent that they will be ready to argue I.A.No.1216 of 2004 on that date and they would not seek any adjournment. The court below shall consider all relevant facts and the contentions of the parties and shall dispose of I.A.No.1216 of 2004 by a reasoned order. No further directions are required. The Review Petition is disposed of as above. (K.T.SANKARAN) Judge ahz/