Allowed

Joseph Raj Jestus v. Nirmala Simson

Kerala HC11 Dec 2008CRP/154/2008

Case brief

AI extract

What is this about?

This revision petition challenged an order dismissing a review plea alleging a compromise decree was obtained under fraud. The High Court set aside the dismissal, holding that evidence cannot be examined before the condonation of delay petition is decided separately.

What did the court decide?

Set aside impugned order; direct trial court to dispose of condonation and review applications on merits within three months; stay execution decree.

Joseph Raj Jestus Vs Nirmala Simson — Civil Procedure and Limitation | Kerala HC (2008)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN

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THURSDAY, THE 11TH DECEMBER 2008 / 20TH AGRAHAYANA 1930

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CRP.No.154 of 2008 (C)

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---------------------------IA 5502/2006 IN OS.766/2001 of ADDL.MUNSIFF COURT, KOLLAM

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PETITIONER/PETITIONER/1ST DEFENDANT:

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-----------------------------------------------------

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JOSEPH RAJ JESTUS, S/O.JESTUS, GRATIAS BHAVAN, MAYYANAD CHERRY, MAYYANAD VILLAGE, KOLLAM.

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BY ADV. SRI.N.SUKUMARAN

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SRI.S.SHYAM SRI.BOBBYMATHEW KOOTHATTUKULAM

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RESPONDENTS/COUNTER PETITIONERS/PLAINTIFFS:

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---------------------------------------------------------------

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1. NIRMALA SIMSON, W/O.SIMSON, PUTHIYATH, BODHI NAGAR-155, THATTAMALA P.O., KOLLAM.

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2. SIMSON VICTOR, S/O.VICTOR, PUTHIYATH, BODHI NAGAR-155, THATTAMALA P.O., KOLLAM.

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ADV. SRI.ALEX N.MATHEW (KOLLAM) FOR R1 & 2 SRI.H.RAMANAN FOR R1 & 2 SRI.JAMES JOSE FOR R1 & 2

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THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 11/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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K.P.BALACHANDRAN, J.

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C. R. P. No.154 of 2008

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Dated this the 11^th day of December, 2008

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ORDER

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Petitioner is the first defendant in O.S.766/01 on the file of the Munsiff's Court, Kollam. The said suit was decreed on 11/09/06 in terms of compromise petition filed on 01/09/06. After about three months of passing of the decree I.A.5502/06 was filed by the petitioner/first defendant for reviewing the compromise decree passed in the suit on the allegations that the compromise was got signed from him by forcibly administering liquor and intoxicating him to such an extent that he was rendered unable to understand as to what he was doing and that therefore, the compromise petition on which signature was got from him by fraud is not binding on him and the decree passed on the basis thereof has to be set aside. The review petition was accompanied by

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-2-

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C. R. P. No.154 of 2008

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I.A.5503/06 seeking condonation of delay of 73 days in filing the said review petition. According to the petitioner, the delay petition was heard on 10/10/07, but no orders are passed thereon. Instead the trial court on the same day passed the impugned order on 10/10/07 dismissing the review petition observing that the allegations in the petition are not established on evidence and that no evidence at all was adduced by the petitioner to prove the matters alleged. Counsel for the petitioner submits that the petitioner had produced several documents in the court below to establish his case alleged in the review petition (I.A.5502/06), but that there was no occasion for him to adduce evidence as the said I.A had not been posted for enquiry and the said I.A could have been posted also for enquiry only after condoning the delay vide I.A.5503/06. Counsel for the respondent also

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C. R. P. No.154 of 2008

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submits that no order is passed by the court below on I.A.5503/06 condoning the delay but that counsel on both sides had advanced arguments in the court below on the merits of the grounds stated in the review petition. That however, is not a matter of controversy on which this Court is expected to make any comment. However, the fact remains that no order was passed on I.A.5503/06. Without passing an order on I.A.5503/06 condoning the delay the court below should not have passed order on I.A.5502/06 seeking for review of the compromise decree and judgment passed in the suit. Opportunity arises for the party to adduce evidence if at all he wants to adduce evidence in the review petition, only when the delay is condoned and the petition is posted for enquiry. Both sides agree that no such instance had happened in the instant case. In the circumstances, the impugned order passed

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C. R. P. No.154 of 2008

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by the court below on I.A.5502/06 in O.S.766/01 is unsustainable and deserves to be set aside.

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In the result, allowing this revision, I set aside the impugned order on I.A.5502/06 in O.S.766/01 and direct the court below to pass appropriate orders thereon considering the said I.A on merits after disposing of I.A.5503/06. The parties shall be at liberty to adduce evidence if they so desire in the matter of I.A.5502/06 as also I.A.5503/06. The learned Munsiff shall dispose of the matter within three months from the date on which a copy of this order is produced before him. Counsel on either side shall be at liberty to produce a copy of this order in the court below at the earliest so as to enable the Munsiff to pass appropriate orders and dispose of the matter in compliance with the

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directions made above.

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C. R. P. No.154 of 2008

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It is submitted that execution

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petition is pending before the execution court to execute the compromise decree that is assailed. It is therefore, ordered that execution of the compromise decree passed in the suit shall stand stayed till disposal of I.A.5502/06 and I.A.5503/06 by the court below.

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This C.R.P is disposed of with the

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above directions.

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K.P.BALACHANDRAN, JUDGE

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kns/-

Joseph Raj Jestus v. Nirmala Simson

Case brief

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Joseph Raj Jestus v. Nirmala Simson

Case brief

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