Dismissed

Manoj v. Mohammed Kunju

Kerala HC3 Apr 2018RP/294/2018

Case brief

AI extract

What is this about?

The Court dismissed a review petition filed to challenge an order reversing a rejection of an amendment plaint application. Finding no error apparent on the record and no additional materials to justify review powers, the petition was rejected as devoid of merit.

What did the court decide?

Review petition dismissed; the impugned judgment reversing the rejection of the amendment application stands affirmed.

Manoj Vs Mohammed Kunju — Specific Performance | Kerala HC (2018)

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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 ALEXANDER THOMAS

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TUESDAY, THE 3RD DAY OF APRIL 2018 / 13TH CHAITHRA, 1940

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RP.No. 294 of 2018

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AGAINST THE JUDGMENT IN OP(C) 3316/2017 DATED 31-01-2018 ------------------

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REVIEW PETITIONERS/RESPONDENTS 1 TO 4 AND 6

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1. MANOJ MANOJ BHAVAN, VILAKUDI VILLAGE, PATHANAPURAM TALUK, KOLLAM DISTRICT, PIN: 691 508.

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2. RADHAKRISHNAN, S/O.DAMODHARAN, VADKKEPURAYIDATHIL VEEDU, VILAKUDI VILLAGE, PATHANAPURAM TALUK, KOLLAM DISTRICT 691 508.

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3. SURENDRAN S/O.KUNJU PANICKAR, THADAVILA PUTHENVEEDU, VILAKUDY VILLAGE, PATHANAPURAM TALUK, KOLLAM DISTRICT 691 508.

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4. SREEKALA, D/O.BABU ONAMPALLIL PADINJATTATHIL, VILAKUDI VILLAGE, PATHANAPURAM TALUK, KOLLAM DISTRICT 691 508.

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5. JOY S/O.ABUKARAN ACHAYAN, SINDHU BHAVAN,KIZHAKETHIL, VILAKUDI VILLAGE, PATHANAPURAM TALUK, KOLLAM DISTRICT 691 508.

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BY ADV.SRI.K.S.BHARATHAN

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RESPONDENTS/PETITIONERS AND RESPONDENTS 5,7 TO 10:

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1 MOHAMMED KUNJU S/O.ALI AKBAR KUNJU, SHAHIDA MANZIL, VILAKUDY, PATHANAPURAM TALUK, KOLLAM DISTICT. PIN- 691 508

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2 SHAHIDA SHAMSHUDEEN W/O.LATE SHAMSHUDEEN, SHAHIDA MANZIL, VILAKUDY, PATHANAPURAM TALUK, KOLLAM DISTICT. PIN- 691 508

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RP.No. 294 of 2018

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3 HASHIM., AGED 17 YEARS, MINOR (REPRESENTED BY 2ND PETITIONER MOTHER AND NEXT FRIEND) S/O.LATE SHAMSHUDEEN, SHAHIDA MANZIL, VILAKUDY, PATHANAPURAM TALUK, KOLLAM DISTICT. PIN- 691 508

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4 SHAHANA, AGED 17 YEARS, MINOR, REPRESENTED BY 2ND PETITIONER MOTHER AND NEXT FRIEND) D/O.LATE SHAMSHUDEEN, SHAHIDA MANZIL, VILAKUDY, PATHANAPURAM TALUK, KOLLAM DISTICT. PIN- 691 508

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5 SHEMEEM., AGED 12 YEARS, MINOR, REPRESENTED BY 2ND PETITIONER MOTHER AND NEXT FRIEND) S/O.LATE SHAMSHUDEEN, SHAHIDA MANZIL, VILAKUDY,

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PATHANAPURAM TALUK, KOLLAM DISTICT. PIN- 691 508

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6 AJITHKUMAR S/O.VASU UNNITHAN, VASAVA SADHANAM, VILAKUDY, PATHANANPURAM TALUK, KOLLAM DISTRICT. PIN- 691 508

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7. OMANAKUTTAN, S/O.D/O.BABU ONAMPALLIL PADINJATTATHIL, VILAKUDI VILLAGE, PATHANAPURAM TALUK, KOLLAM DISTRICT, PIN 691 508.

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8. N.MADHAVIKUTTY AMMA

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W/O.LATE KARUNAKARAN PILLAI, ARAPPURA VEEDU, VILAKUDI VILLAGE,

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PATHANAPURAM TALUK, KOLLAM DISTRICT, PIN- 691 508.

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9. GEE VARGHESE YOHANNAN MYPOORAZHIKATHU VEEDU, VILAKUDI VILLAGE, PATHANAPURAM TALUK, KOLLAM DISTRICT, PIN 691 508.

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10. SHAHUL HAMEED S/O.KUNJU MYDEEN KUNJU, ALI AZHIKATHU VEEDU, VILAKUDI VILLAGE, PATHAPURAM TALUK, KOLLAM DISTRICT, PIN 691 508.

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RP.No. 294 of 2018

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11. SOMAN S/O.KESAVAN, VADAKKEKKARA PUTHEN VEEDU, VILAKUDI VILLAGE, PATHAPURAM TALUK, KOLLAM DISTRICT, PIN- 691 508.

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BY SRI.R.RAJESH(PULLIKADA)

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THIS REVIEW PETITION HAVING COME UP ADMISSION ON 03-04-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

sdr/19.04.18

ALEXANDER THOMAS, J.

R.P.No.294 Of 2018

[Seeking to Review the Judgment dated 31.1.2018 in O.P(C).No.3316/2017]

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Dated this the 3rd day of April, 2018.

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O R D E R

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This is an application to review the impugned judgment dated 31.1.2018 rendered by this Court in O.P.(C).No.3316/2017 filed by respondents 1 to 4 & 6 in the Original Petition.

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Heard Sri.K.S.Bharathan, learned counsel for the review petitioners/respondents 1 to 4 & 6 in the O.P(C) and Sri.R.Rajesh (Pullikada), learned counsel appearing for the respondents 1 to 6 in the R.P/Original Petitioners.

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It is not in dispute that notice was duly served on the respondents in the Original Petition and they have not chosen to enter appearance. It is stated that the present review petitioners/respondents 1 to 4 & 6 in the O.P.(C), had made arrangement to engage a counsel to appear in the Original Petition and due to inadvertence on the part of the advocate clerk concerned, steps could not be taken to ensure filing of the vakalath within time, which led to a situation whereby the Original Petition was listed for disposal in which the name of the counsel for the said respondents in the Original Petition was not thus

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::2::

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R.P.No.294 Of 2018

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published in the cause list. This Court had taken a lenient view to condone the delay in filing the Review Petition.

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The order under challenge in the Original Petition was one

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at Ext.P-4 dated 7.11.2017, whereby Ext.P-3 I.A.No.2118/2017 filed by the Original Petitioners/plaintiffs for amendment of the plaint has been rejected. The impugned Ext.P-4 order reads as follows:

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“ORDER

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Up on considering the proceedings of the case it is found that petitioner was given sufficient time for taking pre-trial steps. Even after availing all such opportunities the petitioner has come up with the present application only on the final hearing of the case. The application is found to be highly belated and filed only to drag the litigation. Thus the application is dismissed with cost.”

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It is not in dispute that Ext.P-3 I.A.No.2118/2017 filed in the Original Suit (on which impugned Ext.P-4 order has been rendered) was filed on 25.10.2017 and equally it is not under dispute that the Original Suit was listed on 3.11.2017 for trial. Taking note of the decisions of the Apex Court in the judgments as in Vidyabai v. Padmalatha , reported in (2009) 2 SCC 409, para 11, Baldev Singh v. Manohar Singh , reported in (2006) 6 SCC 498, para 17, etc., it has been held that the trial can be said to have commenced as envisaged in the proviso to Order VI Rule 17 C.P.C., only after the commencement of evidence through filing of affidavit in lieu of examination of the witness concerned. On this basis,

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this Court held that it is not in dispute that the evidence in this case had

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::3::

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R.P.No.294 Of 2018

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not commenced at the time when Ext.P-3 was filed on 25.10.2017. Accordingly, this Court held that the bar under the proviso to Order VI Rule 17 C.P.C., will not be attracted in the facts of the present case. In that view of the matter, this Court had interfered with the impugned Ext.P-4 order and set aside the same and remitted Ext.P-3 I.A.No.2118/2017 for consideration afresh after hearing both sides and in the light of the above said judgments.

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After hearing both sides, this Court is of the view that there

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is no error apparent on the face of record for reviewing the judgment. Equally, the review petitioners have no case that additional materials are produced so as to warrant invocation of the remedy. Accordingly, this Court is of the considered opinion that no factual grounds have been made out in this Review Petition warranting extra ordinary powers conferred on this Court. The Review Petition is thus bereft of any merit and it is liable to be dismissed.

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Accordingly, the Review Petition will stand dismissed.

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Sd/-

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ALEXANDER THOMAS, Judge.

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Bkn/-

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//True copy //

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P.A to Judge.

Manoj v. Mohammed Kunju

Case brief

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What did the court decide?

Manoj v. Mohammed Kunju

Case brief

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