Allowed

T.D.Vittal v. Sreekar Kammath

Kerala HC2 Nov 2012OP(C)/3482/2012

Case brief

AI extract

What is this about?

The High Court of Kerala set aside the order dismissing a review application in a suit for partition. The review was filed because the lower court failed to appoint a next friend for the fourth defendant, preventing her representation. The court directed the lower court to reopen the decree.

What did the court decide?

Set aside the order dismissing I.A No. 1197/2012; allowed the review petition; directed the court below to reopen the preliminary decree and act on the application to appoint a next friend.

T.D.Vittal Vs Sreekar Kammath — Partition | Kerala HC (2012)

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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 V.CHITAMBARESH

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FRIDAY, THE 2ND DAY OF NOVEMBER 2012/11TH KARTHIKA 1934

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OP(C).No. 3482 of 2012 (O)

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-------------------------(IN OS.265/2011 of PRL.M.C., KOCHI)

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PETITIONER(S)/PALINTIFF :

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T.D.VITTAL, AGED 48 YEARS, S/O LATE T.N. DAMODARA KAMMATH, THEKKEDATH HOUSE, KANNAMALY P.O, KOCHI - 8.

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BY ADVS.SRI.N.RATHEESH SMT.SUMA RATHEESH

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RESPONDENT(S)/DEFENDANTS :

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1. SREEKAR KAMMATH, AGED 57 YEARS, S/O.T.N. DAMODARA KAMMATH, MATHRUSMRITHI, 3/513A PALLIKAVALA, THALAYOLAPARAMBU, KOTTAYAM - 686 001.

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2. T.D. REMA BAI, AGED 60 YEARS, VASANTHA KUMAR PAI, ASTHIKA NIVAS, KODYAMPADI, MARIYATHURUTH P.O, KOTTAYAM - 686 001.

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3. BALAKRISHNA KAMMATH, AGED 52 YEARS, S/O.T.N. DAMODARA KAMMATH, THEKKEDATH HOUSE, KANNAMALY P.O, COCHIN - 8.

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4. T.D. MUKTHA BAI, AGED 50 YEARS, W/O NADAKUMAR BHATT, PUTHENMADAM, PALAKKATHU THAZHOM, MUDICKAL P.O., PERUMBAVOOR, ERNAKULAM DISTRICT, REPRESENTED BY HER HUSBAND SHRI NADAKUMAR BHATT, PUTHENMADOM, PALAKKATHU THAZHOM, MUDICKAL P.O., PERUMBAVOOR, ERNAKULAM DISTIRCT - 683 542,

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R1 AND R3 BY ADV. SRI.P.S.HARIHARAN

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R4 BY ADV. SRI.S.ANANTHAKRISHNAN R4 BY ADV. SRI.N.K.SUBRAMANIAN

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 02-11-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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AMV

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OP(C).No. 3482 of 2012 (O)

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APPENDIX

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PETITIONER(S) EXHIBITS :

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EXT. P1 COPY OF THE PLAINT DATED 12-07-201 IN O.S 265/2011 OF THE MUNSIFF'S COURT, KOCHI

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EXT. P2 COPY OF THE APPLICATION (I.A NO 1535/2011) DATED 12-07-2011 IN O.S NO 265/2011 OF THE MUNSIFF'S COURT, KOCHI

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EXT. P3 COPY OF THE PRELIMINARY DECREE DATED 17-10-2011 IN O.S NO 265/2011 OF THE MUNSIFF'S COURT, KOCHI

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EXT. P4 COPY OF THE I.A NO 2611/2011 DATED 12-12-2011 IN O.S NO 265/2011 OF THE MUNSIFF'S COURT, KOCHI

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EXT. P5 COPY OF THE COUNTER AFFIDAVIT DATED 20-03-2012 FILED BY THE HUSBAND OF THE 4TH RESPONDENT

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EXT. P6 COPY OF THE I.A NO 1197/2012 DATED 06-06-2012 IN O.S NO 265/2011 OF THE MUNSIFF'S COURT, KOCHI

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EXT. P7 COPY OF THE ORDER DATED 25-07-2012 IN EXT. P6 APPLICATION EXT. P8 COPY OF THE ORDER DATED 28-07-2012 IN EXT. P4 APPLICATION

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RESPONDENTS' EXHIBITS : NIL

/TRUE COPY/

P.A.TO JUDGE

AMV

V.CHITAMBARESH,J.

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= = = = = = = = = = =

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O.P.(C) No.3482 of 2012

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= = = = = = = = = = = == = = = = Dated this the 2^nd day of November, 2012

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J U D G M E N T

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I.A No.1535 of 2011 in O.S No.265/2011 on the file of the

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Court of the Munsiff of Kochi was filed seeking leave to represent the fourth defendant by her next friend husband. It appears that a preliminary decree for partition was passed on 17-10-2011 without passing any orders on I.A No.1535/2011 to appoint a next friend. The petitioner/plaintiff thereupon filed I.A No.1197/2012 to review the judgment and reopen the preliminary decree for partition. The same has been dismissed by the court below which is impugned in this original petition under Article 227 of the Constitution of India.

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The failure to pass any orders on I.A No.1535/2011 to appoint a next friend for the fourth defendant in the suit for partition is obviously a mistake of the Court. It is trite law that no harm shall be caused to any litigant on account of a mistake committed by the Court during the dispensation of justice. I am satisfied that sufficient reasons exist to reopen the preliminary

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O.P.(C) No.3482 of 2012

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decree and proceed afresh after passing appropriate orders on I.A No.1535/2011. The impugned order is set aside and I.A No.1197/2012 in O.S No.265/2011 on the file of the Court of the Munsiff of Kochi is allowed.

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The court below is directed to reopen the preliminary

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decree in O.S No.265/2011 and proceed further after passing appropriate orders in I.A No.1535/2011. No further directions are called for under the circumstances.

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The Original Petition is disposed of . No costs.

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V.CHITAMBARESH. JUDGE

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smm

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O.P.(C) No.3482 of 2012 3

T.D.Vittal v. Sreekar Kammath

Case brief

What is this about?

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T.D.Vittal v. Sreekar Kammath

Case brief

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