IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 21ST JUNE 2010 / 31ST JYAISTHA 1932 RP.No. 519 of 2010(O) --------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.12952/2010 .................... REVIEW PETITIONER/ PETITIONER: -------------------------------- ABDUL SHAJAR, S/O.ASHRAF, ARAYALUVILA HOUSE, KURAKKANNI, VARKALA. BY ADV. SRI.M.R.RAJESH SMT.A.K.PREETHA SRI.K.M.ALEXANDER RESPONDENT/RESPONDENT ------------------------- ABDUL SALAM, S/O.ABDUL MAJEED, YAMUNA, MUNDAYIL, VARKALA. THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 21/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- R.P.No.519 of 2010 --------------------------------------- Dated this 21st day of June, 2010 ORDER This application for review is filed by the petitioner in W.P.C.No.12952 of 2010 which was disposed of by me after hearing both sides on 17-05-2010. The dispute concerned possession of a shoproom. Petitioner filed O.S.No.63 of 2010 claiming to be in possession of the said room while respondent filed O.S.No.72 of 2010 claiming that he has been in possession and enjoyment of the said room, doing business therein for about 18 years. Both sides applied for temporary injunction in the way it suited them vide I.A.Nos.403 of 2010 and 453 of 2010 in their respective suits. Learned Munsiff after hearing both sides directed parties as per order dated 29-03-2010 to maintain status quo. Petitioner was also prevented from inducting third parties into possession of the property. Advocate Commissioner appointed in the case inspected shoproom and submitted his report which stated that since the shoproom was locked at the time of his visit, he did not open it for inspection. Thereafter respondent filed application to depute the Commissioner to inspect the room again. On that application there was an order passed by the learned Munsiff directing the Commissioner to open the shoproom, inspect the same and return the key to the court. This court while deciding the R.P.No.519 of 2010 : 2 : writ petition issued certain directions as regards the order passed by learned Munsiff appointing the Commissioner. The direction was that petitioner shall handover key of the shoproom to the Advocate Commissioner for inspection and after such inspection, Commissioner shall handover the key to the petitioner. It was also directed, considering the apprehension raised by learned counsel for respondent that petitioner shall file an affidavit in the trial court within three days from the date of the order undertaking that he shall not remove any of the articles that may found in the shoproom and as may be reported by the Advocate Commissioner and that he shall maintain status quo awaiting orders of the learned Munsiff on applications for injunction filed by the parties (Exts.P2 and P6 in the writ petition). It was directed that until learned Munsiff passed orders on the said applications, petitioner shall not hand over possession of the shoproom to any other person or himself do any act or business in the shoproom. This court also made it clear that the said directions are issued in respect of the order dated 05-04- 2010 on Ext.P9, application for the issue of Advocate Commissioner. Since learned Munsiff had directed in the applications for injunction that enquiry on the said applications is necessary, I directed learned Munsiff to dispose of the said applications within a month from the date of receipt of copy of judgment. R.P.No.519 of 2010 : 3 : 2. Grievance of petitioner is that writ petition came up for hearing and it was disposed of by this court on 17-05-2010 but on the same day, petitioner had challenged order of status quo on Exts.P2 and P6 applications before the learned Sub Judge under Order 43 Rule 1(r) of the Code of Civil Procedure (for short, “the Code”) and that learned Sub Judge after hearing both sides passed an order of stay. Learned counsel was not aware of filing of the C.M appeals against the order of status quo before the learned Sub Judge and hence learned counsel was not able to make a mention of that in this court. The apprehension of learned counsel is that notwithstanding the stay granted by learned Sub Judge on the order of status quo learned Munsiff is constrained to dispose of Exts.P2 and P6 applications within one month as directed by this court in the judgment dated 17-05-2010. That puts learned Munsiff in a difficult situation and petitioner also is affected on account of the direction issued by this court. He therefore seeks a review of the judgment of this court to the extent it concerned direction to the learned Munsiff to dispose of Exts.P2 and P6 applications (in the writ petition) within one month from the day of receipt of the judgment. According to learned counsel since the fact of filing of the C.M appeals was not brought to the notice of this court it is within the power of this court to order a review. Learned counsel for respondent in response contended that there is nothing R.P.No.519 of 2010 : 4 : required to review the judgment dated 17-05-2010 passed after hearing both sides. It is also the contention of learned counsel that when the applications for stay in the C.M appeals came up for hearing on 19-05-2010 fact of this court disposing the writ petition on 17-05-2010 was not brought to the notice of learned Sub Judge by the petitioner. Immediately thereafter respondent filed an application before the learned Sub Judge producing a copy of judgment of this court dated 17-05-2010 and after considering the said judgment, learned Sub Judge has passed the following order “The order of stay in I.A.No.866 of 2010 would not effect in any way the disposal of I.A.No.403 of 2010 by the court below as per the judgment of honourable High Court in W.P.C.No.12952 of 2010.” According to the learned counsel, C.M appeals were preferred only after this court passed judgment om 17-05-2010 and with the sole object of defeating the direction contained in the judgment to the learned Munsiff to dispose of Exts.P2 and P6 applications. According to the learned counsel, if the enquiry on the said application is not conducted at the earliest and the applications are disposed of immediately respondent will be put to much difficulties and inconvenience. 3. Grievance of petitioner is that the fact of filing of C.M R.P.No.519 of 2010 : 5 : appeals on I.A.Nos.403 and 453 of 2010 could not be brought to the notice of this court while disposing of the writ petition on that day. I must bear in mind that in the writ petition what was considered was only the order passed by learned Munsiff on Ext.P9, application for the issue of commission directing Advocate Commissioner to return the key of disputed room to the court which according to the petitioner affected the order of status quo passed by learned Munsiff. It is while considering the said order that this court issued certain directions as contained in the judgment sought to be reviewed. This court made it clear that directions are issued in the writ petition which concerned order dated 05-04-2010 on Ext.P9, application for the issue of a commission. In other words, this court was not dealing with correctness or otherwise of the order of status quo passed on Exts.P2 and P6, applications. The judgment of this court cannot and shall not affect right of aggrieved parties to prefer to challenge the order of status quo passed on Exts.P2 and P6 applications (in the writ petition). I make it clear that the judgment of this court will not in any way affect right of the parties to prefer to challenge the order of status quo passed on Exts.P2 and P6 applications or to the maintainability of the appeals if already filed challenging the said order. 4. So far as direction for disposal of Exts.P2 and P6 R.P.No.519 of 2010 : 6 : applications within the time frame stated by this court is concerned, it is made clear that the said directions will be subject to the direction or order of the court hearing the C.M appeals. It will be open to the parties to seek appropriate direction regarding disposal of Exts.P2 and P6 applications from the learned Sub Judge who is dealing with the C.M appeals. I make it clear, to allay the apprehensions of both sides that this court does not intend to mean that the applications, Exts.P2 and P6 need not be disposed of expeditiously. The enquiry if any to be conducted on the said applications will be as the court dealing with the C.M appeals may direct. Learned Munsiff shall dispose of the applications as ordered or as may be ordered by the learned Sub Judge in the C.M appeals. Petition is disposed of as above. (THOMAS P JOSEPH, JUDGE) Sbna/-