IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 22ND FEBRUARY 2010 / 3RD PHALGUNA 1931 WP(C).No. 28071 of 2005(P) ----------------------------------- AGAINST THE ORDER IN IA.417/04 IN OS.1547/2001 of MUNSIFF COURT, CHAVAKKAD. .................... PETITIONER(S): ------------------------ MATHILAKATH VEETTIL KUNHIBAPPU, S/O.KUNHAMMU, AGED 92 YEARS, THALIKULAM, CHAVAKKAD TALUK. BY ADVS.MR.C.KHALID MR.N.GOPINATHA PANICKER MR.R.O.MUHAMED SHEMEEM MR.T.P.SAJID RESPONDENT(S): -------------------------- 1. FATHIMA, AGED 60 YEARS, W/O.MATHILAKATH VEETTIL MALIKKAL, KOCHUMUHAMMED, THALIKULAM, CHAVAKKAD. 2. ABDUL GAFUR, AGED 38 YEARS, S/O. MATHILAKATH VEETTIL, KOCHUMUHAMMED, THALIKULAM, CHAVAKKAD. 3. JAMEELA, D/O.MATHILAKATH VEETTIL KOCHUMUHAMMED, AGED 36, THALIKULAM, CHAVAKKAD. 4. JESSI, D/O.MATHILAKATH VEETTIL, KOCHUMOHAMMED, AGED 28 YEARS, THALIKULAM, CHAVAKAD. R1 TO R4 ADV. MR.K.RAMACHANDRAN, SMT.R.MEERA. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/02/2010, ALONG WITH CRP NO. 1355 OF 2004 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.28071/2005 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE ORDER IN IA. NO.417/04 IN OS. 1547/2001 OF THE MUNSIFF COURT, CHAVAKKAD. P2:- COPY OF THE CRP . 1355/04 FILED BY THE PETITIONER BEFORE THIS HONOURABLE COURT. TRUE COPY P.A. TO JUDGE tss S.S.SATHEESACHANDRAN, J ------------------------------------- W.P.C No. 28071 OF 2005 AND C.R.P No.1355 OF 2004 -------------------------------- Dated this the 22nd day of February 2010 JUDGMENT The revision is directed against the order dated 21/07/2004 in I.A No.4/04 in A.A No.4/04 passed by the Appellate Authority(LR), Thrissur. The revision petitioner has filed the above I.A to condone the delay of 11405 days in filing the appeal challenging the issue of a purchase certificate in favour of the 1st respondent. The Appellate Authority not being satisfied with the cause shown to condone the delay dismissed that application and hence, the revision. The writ petition arises from an order passed in O.S No.1547 of 2001 filed by the very same petitioner as plaintiff for partition of the property covered by the proceedings before the Land Tribunal. In the suit the partiable right claimed by the plaintiff was resisted by the 1st defendant contending that a purchase certificate had been issued in her favour by the Land Tribunal. Plaintiff, thereupon moved an application for amendment of the plaint seeking a declaration that the purchase certificate had been obtained by fraud. The learned Munsiff, after considering the objections raised by the 1st respondent and hearing the counsel on both sides, dismissed that amendment application. Propriety and correctness of the order passed by the learned Munsiff declining the amendment applied for is challenged in the writ petition. W.P.C No. 28071 OF 2005 AND C.R.P No.1355 OF 2004 Page numbers 2. Since identical issues emerge for consideration in both the revision and also the writ petition, though the orders impugned are passed by different entities, Appellate Authority and Court, both the proceedings are disposed under this common judgment. 3. The learned counsel for the revision petitioner submitted that the circumstances presented in the application for condoning the delay and also the amendment application moved in the court exfacie reveal the fraud committed by the 1st respondent in the revision/the 1st defendant in the suit in obtaining a purchase certificate by fraudulent means. In the given facts of the case, an opportunity should be extended to the revision petitioner/plaintiff to have a decision on merits by entertaining the appeal against the order of the Land Tribunal condoning delay, is the submission of the learned counsel. On the other hand, the learned counsel appearing for the 1st respondent submitted that there is no merit in the application moved for condoning the delay in the appeal preferred before the Appellate Authority and also the amendment sought for in the suit instituted before the Civil court. Notice of the proceedings in the Land Tribunal was admittedly accepted by the revision petitioner/plaintiff, but, he did not appear before the Land Tribunal, nor raise any challenge against the issue of purchase certificate till the filing of the suit. Suit was filed after issuing a notice demanding partition which was responded to with a reply W.P.C No. 28071 OF 2005 AND C.R.P No.1355 OF 2004 Page numbers notice specifically contending that the property is not partiable as purchase certificate had been issued by the Land Tribunal in favour of the 1st defendant and so much so, she has absolute title over the property. Still, the suit claiming partition was instituted without making any reference to the orders passed by the Land Tribunal or impeaching the correctness of the purchase certificate issued. After the defendants filed a counter to the application for injunction reiterating the contentions advanced in the reply notice, according to the counsel, the amendment was sought for in the suit and an appeal preferred before the Appellate Authority with a condonation petition advancing a case that the petitioner came to know of the issue of purchase certificate only on the counter filed by the defendants. In the above circumstances, the order passed by the civil court in the suit declining the amendment sought for and also that of the Appellate Authority turning down the application for condoning the delay and rejecting the appeal, according to the counsel, do not call for any interference. 4. I have perused the orders passed by the Appellate Authority, and also that of the civil court declining the amendment sought for in the suit. From the facts and circumstances presented, the case canvassed by the petitioner/plaintiff that he came to know of the issue of purchase certificate and of the alleged fraud practiced upon him only when the defendant filed a counter to his W.P.C No. 28071 OF 2005 AND C.R.P No.1355 OF 2004 Page numbers injunction petition in the suit can be taken only with a pinch of salt, where it is prima facie shown that he had received a notice from Land Tribunal and before the suit in the reply sent by defendant to the demand notice for partition had assailed of his right, on the basis of purchase certificate issued. At any rate, the facts would prima facie indicate that he had knowledge of the issue of purchase certificate and the proceedings before the Land Tribunal much earlier to the filing of the suit. In testing the merit of the delay petition and also the cause shown for condoning the delay moved in the appeal preferred before the Appellate Authority and also the amendment application in the suit, it has to be pointed out that even if there is any truth in the cause canvassed by the petitioner/plaintiff that fraud was practiced on him when the notice of the proceedings of the Land Tribunal was served on him by his brother his silence and absence of any enquiry from his part as to what happened to the proceedings of the Land Tribunal is a telltale circumstance indicating that the cause shown in his application has no merit. Challenges canvassed in the revision and also the writ petition lack merit, and I find, no interference with those orders is called for in exercise of the extraordinary jurisdiction of this court. Revision and writ petition are dismissed. Sd/- S.S.SATHEESACHANDRAN //TRUE COPY// JUDGE vdv P.A TO JUDGE