IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 2ND MARCH 2010 / 11TH PHALGUNA 1931 WP(C).No. 4829 of 2010(O) ------------------------------------- [OS.NO.1598/2008 OF MUNSIFF'S COURT, THIRUVANANTHAPURAM] .................... PETITIONER: ------------------- JOSE, AGED 40 YEARS, S/O.FERDY GOMEZ, RESIDING AT K.P. 12/353, CANAL PURAMBOKE NEAR CARMAL ASRAMAM, MENAMKULAM VILLAGE, CHITTATTUMUKKU P.O., THIRUVANANTHAPURAM. BY ADV. MR.G.S.REGHUNATH. RESPONDENT: ---------------------- JERRY BRIGHT, S/O.STELLUS NETTO, MANISH, KARIYIL, KAZHAKKUTTOM, THIRUVANANTHAPURAM. BY ADVS. MR.DINESH R.SHENOY, MR.G.HARIKRISHNAN (TRIPUNITHURA), MR.MAHESH MENON. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.4829/2010-O: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE PLAINT IN O.S. NO. 1598/2008 ON THE FILE OF THE MUNSIFF'S COURT, TRIVANDRUM. EXT.P.2: COPY OF THE INJUNCTION PETITION I.A. NO.7606/08. EXT.P.3: COPY OF THE OBJECTION TO EXT.P.3. FILED BY THE DEFENDANTS 1 TO 4. EXT.P.4: COPY OF THE I.A. NO. 2158/09. EXT.P.5: COPY OF THE REVIEW PETITION FILED AS I.A. NO. 9929/09. EXT.P.6: COPY OF THE OBJECTION FILED TO I.A. NO. 2158/2009. EXT.P.7: COPY OF THE PETITION FOR VACATING THE INJUNCTION ORDER PASSED ON I.A. NO. 7608/08. EXT.P.8: COPY OF THE PETITION FILED TO VACATE THE ORDER PASSED ON I.A. NO. 2158/2009. EXT.P.9: COPY OF THE ORDER DTD. 21/12/2009 IN I.A. NO. 9929/2009. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. P.BHAVADASAN, J. ------------------------------------- WP(C) No.4829 of 2010-O ------------------------------------- Dated 2nd March 2010 Judgment The petitioner has approached this Court, challenging Ext.P9 order, by which the Review Petition filed by him, was dismissed. 2. The facts absolutely necessary for the disposal of the case are the following : The petitioner is the second defendant in OS No.1598/08 before the Munsiff's Court, Thiruvananthapuram. The suit was one for mandatory injunction, directing the respondents to remove plaint C, D & E schedule huts from plaint B schedule property and for a preliminary prohibitory injunction from making any new constructions. Along with the plaint, IA No.7608/08 was moved for interim relief and the interim injunction as prayed for was granted. 3. The petitioner has a case that he had engaged a counsel for defending his case and he expected that the counsel would do whatever was necessary in the matter. The WPC 4829/10 2 petitioner and the other defendants are poor fishermen, who earn their living by engaging in fishing. It was later learned by them that their counsel did not represent their case before Court and they had to suffer orders. 4. The petitioner would say that he has a hut in the B schedule property and that he and his predecessors had been staying in the said hut for a long time. He had appraised his counsel of these facts and he expected that those facts would be presented before Court. But, that did not happen. Thereafter, the petitioner was not informed of anything about the progress of the suit or of any orders that were passed in it. It is stated that IA No.2158/09 was filed by the plaintiff for mandatory injunction directing the petitioner to demolish the hut put up by him on the allegation that he had violated the interim order passed by the Court below. The specific allegation was that he had put up a new house there in violation of the order. According to the petitioner, his Advocate did not represent his case. In that petition also, there is a controversy as to whether notice was issued to the respondent at all. But that is not a matter that needs to be resolved in this petition. Thereafter, it WPC 4829/10 3 so happened that IA No.5704/09 was moved for implementing the mandatory injunction order passed by the Court below. The order in that petition, according to the parties, was passed on 05.10.2009. There is some dispute regarding the actual date of hearing also. The difference regarding the dates may not have much bearing in deciding the issue raised in this Petition. 5. It is not in dispute that the petitioner had moved IA No.9929/09 on 22.10.2009 seeking to have the order in IA No.5704/09 reviewed. That petition was dismissed by Ext.P9 order, holding that it was barred by limitation. It is the said order that is assailed in this proceedings. 6. The learned counsel for the petitioner pointed out many infirmities in the order which may not be relevant for the present purpose. According to him, the finding of the Court below that IA No.9929/09 was barred by limitation cannot be sustained. It was filed well within the time stipulated for filing an RP. According to the learned counsel, the Court below should have considered it on merits. 7. The learned counsel for the respondents, on the other hand, pointed out that the entire set of facts have not WPC 4829/10 4 been placed before this Court and many of the facts stated in the order are not correct. It is also pointed out that the petitioner had sought review of the order in IA No.2158/09 and that the RP seeking to review the very same order has been dismissed on 21.10.2009. Therefore, according to the learned counsel for the respondents, no purpose will be served by remanding the matter for consideration of IA No.9929/09. 8. If what are stated in the order are true, it is a shocking state of affairs. Since it is unnecessary to refer to those matters, I refrain from doing so and refer only to those matters which are absolutely necessary for the disposal of this case. Though the learned counsel for the respondents vehemently tried to support the findings of the Court below, he was unable to do so. 9. The time limit for filing an RP is 30 days from the date of the order. Even assuming the order in IA No.5704/09 was passed on 05.10.2009, the petition filed on 22.10.2009 for review is well within the time limit. One fails to understand how the Court below could have dismissed the petition. It is patently wrong. WPC 4829/10 5 10. Then the learned counsel for the respondents pointed out that there is another order which may stand in the way of the Court from reconsidering IA No.5704/09. Whatever that be, it is for that Court to consider the said issue when the petition is heard. At any rate, the present order cannot be sustained. 11. In the result, the Writ Petition is allowed. The impugned order Ext.P9 is set aside and the matter is remanded to the Trial Court with a direction to consider IA No.9929/09 on merits and dispose of the same in accordance with law and in the light of the observations contained herein above, as expeditiously as possible, at any rate, within one month from the date of receipt/production of a copy of this Judgment. P.BHAVADASAN, JUDGE sta WPC 4829/10 6 WPC 4829/10 7