Dismissed

Dilip Kumar v. A.S. Balasubramanian

Kerala HC24 Jun 2024RP/372/2024

Case brief

AI extract

What is this about?

Review of a second appeal judgment confirming prohibitory injunction in favour of plaintiff on possession grounds. The 2nd respondent, who never appeared despite notice at multiple stages, argued non-issuance of notice after admission. The court found his specific performance suit dismissed and final, held no right over the property, and dismissed the review as meritless.

What the court decided

AI extract

Dilip Kumar Vs A.S. Balasubramanian — Specific Performance | Kerala HC (2024)

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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 A. BADHARUDEEN

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MONDAY, THE 24TH DAY OF JUNE 2024 / 3RD ASHADHA, 1946

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RP NO. 372 OF 2024

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AGAINST THE ORDER/JUDGMENT DATED 16.01.2024 IN RSA NO.158 OF 2005 OF HIGH COURT OF KERALA

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REVIEW PETITIONER/2ND RESPONDENT

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DILIP KUMAR

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S/O. RAMACHANDRA MENON, RESIDING AT PUSHPA VILASAM,
KOLLENGODE AMSOM, CHITTUR TALUK, PALAKKAD DISTRICT,
PIN - 678506

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BY ADVS.
P.R.VENKATESH
ASHA P.KURIAKOSE
LAKSHMI MEENAKSHI P.R.

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RESPONDENTS/APPELLANT & 1ST RESPONDENT

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1A.S. BALASUBRAMANIAN
S/O. LATE A.K. SESHA IYER, RESIDING AT THAZHECHIRA
PADAM, ELAVANCHERRY VILLAGE, CHITTUR TALUK,
PALAKKAD DISTRICT-, PIN - 578508

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2A.S. RAMAKRISHNAN
S/O. A.K. SESHA IYER, RESIDING AT ALAMPALLAM
GRAMAM, VADAVANNUR VILLAGE, CHITTUR TALUK, PALAKKAD
DISTRICT., PIN - 678508

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BY ADVS.

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K.S.BHARATHAN
AADITHYAN S.MANNALI(K/631/2014)
ALEENA SONY(K/926/2019)

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THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON
24.06.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:

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RP.NO.372 OF 2024

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O R D E R

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Dated this the 24^th day of June, 2024

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This Review Petition has been filed by the 2^nd respondent in R.S.A No. 158/2005 with a prayer to review judgment and decree in R.S.A No. 158/2005 rendered by this Court on 16.01.2024.

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Heard the learned counsel for the review petitioner/2nd defendant in the suit and the learned counsel for the plantiff/respondent.

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The contention raised by the learned counsel for the review petitioner is that after admission of the 2^nd appeal, no separate notice was issued to the review petitioner, who is the 2^nd respondent/2^nd defendant. Therefore, the judgment in R.S.A No. 158/2005 rendered without issuing notice, after admission, to the review petitioner is liable to be reviewed for the said reason. The other side opposed the review.

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I have perused the proceedings of this appeal, filed

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RP.NO.372 OF 2024

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as early on 20.10.2004 and numbered as R.S.A.158/2005. Initially, this appeal was filed along with a delay petition. This court issued notice to respondent Nos. 1and 2. The 2^nd respondent is the review petitioner. He received notice in October 2005, but he did not appear. Thereafter, as per order dated 07.08.2015 this Court condoned delay after hearing the 1^st respondent who appeared. Thereafter, the appeal was dismissed for default on 27.06.2019.

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Thereafter the appellant filed M.J.C. 370/2019 along with the delay petition to re admit the appeal. In the M.J.C and in the delay petition notices were issued to the respondents therein including the review petitioner. Though he accepted the notice in the M.J.C and in the delay petition, he hesitated to appear before this Court. The 1^st respondent/appellant appeared, and he strongly opposed re-admission of the appeal but this Court allowed the same. On 03.08.2022, this Court admitted the appeal after raising substantial question of law and proceeded further. But no notice was issued to the 2^nd respondent, after

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RP.NO.372 OF 2024

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admission of this appeal as per the proceedings.

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According to the learned counsel for the review petitioner, on getting notice after admission, the 2^nd respondent would have the right to file cross appeal or cross-objection, and failure to issue notice resulted in denial of the said opportunity. For the sole reason the learned counsel for the review petitioner seeks review of the verdict dated 16.01.2024.

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According to the learned counsel for the review petitioner, even though the plaintiff filed a suit for simple injunction and claimed absolute possession over the plaint schedule property, the property is possessed by Balasubramanian, the 1^st respondent, and he had executed a sale deed in favour of the 2^nd defendant.

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As per judgment dated 16.01.2024, this court addressed the contentions raised by the appellant, who is the 1^st defendant in the suit. In fact, the contentions raised by the appellant, who alleged to have executed a sale agreement in favour of the review petitioner herein in

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RP.NO.372 OF 2024

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respect of the plaint schedule property, claiming possession over the plaint schedule property was categorically found against relying on the evidence of PW1 and other materials holding that the plaintiff has been in possession and enjoyment of plaint schedule property. The appellant never had possession of the plaint schedule property. Holding so, the prohibitory injunction granted by the 1^st appellate Court was confirmed by this Court in a suit for a simple injunction.

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Since the learned counsel for the review petitioner raised non issuance of notice after admitting this appeal as a ground to review the verdict in the second appeal, he was permitted to argue on merits to substantiate, how the review petitioner is aggrieved by the verdict in the second appeal.

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While arguing so, the learned counsel for the review petitioner reiterated the contention raised before the trial court as well as the first appellate Court holding that 1^st defendant was in possession and enjoyment of the

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RP.NO.372 OF 2024

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property, though on evidence, the 1^st appellate Court found that plaintiff has been in possession of property and on consideration of evidence of PW1 along with the Exts. A1 and A2 and with reference to the specific recitals in Ext.B1. This Court also found possession of the property by the plaintiff as against the contention raised by the defendants. In Ext. B1, it has been specifically stated that the property had been possessed and enjoyed by the parents of 1^st defendant and therefore the possession claimed by the 1^st defendant could not be found. It is fairly submitted by the learned counsel for the review petitioner, that based on the sale agreement allegedly executed by the 1^st defendant, though the review petitioner filed a suit for specific performance, the same was dismissed and now the decree attained finality.

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In this matter, it is abundantly vivid that 2^nd defendant/ review petitioner who received notice in the year 2005, in the delay petition and in the appeal before admission never appeared before this Court and he even

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RP.NO.372 OF 2024

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failed to appear before this Court even getting notice in the M.J.C and the delay petition thereof. Thereafter, on 16.01.2024, after the completion of nineteen years, this Court delivered judgment after hearing the appellant/1^st defendant and the plaintiff, who appeared and contested the matter. When the review petitioner noticed the negative verdict this review petition has been filed. A review petition also filed by the 1^st defendant/appellant and the same was dismissed earlier.

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In this connection the contention raised by the review petitioner/2nd defendant in the written statement filed before the trial Court as extracted in paragraph 6 of the trial Court judgment is relevant. The relevant portion is extracted as under:

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“The summary of the written statement filed by the 2^nd defendant in brief are as follows;- The plaintiff is not in possession of the plaint schedule property. This defendant entered into an agreement with the 1^st defendant to purchase the plaint schedule property and to enforce that agreement filed O.S 33/99 before the Sub Court. The agreement was executed by the defendant as the Power of Attorney Holder of the father

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and mother. That agreement is binding on all the parties. This defendant never made an attempt to trespass upon the plaint schedule and the allegation put forward in the plaint is false and filed with a view to suit his case. As per the agreement dated 11-7-1998 this defendant is entitled to get a decree for specifics performance and for that purpose he filed O.S.33/99 before the Hon’ble Sub Court.”

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Even going by the contentions raised in the review

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petition, in tune with the contention raised in the written statement, though no notice was issued to the 2nd respondent after admission of this matter, on hearing the contention raised by the review petitioner, nothing substantiated to review the verdict under challenge, to negate the possession found in favour of the plaintiff on merits by the appellate court and confirmed by this Court. Since the review petitioner has no right over the plaint schedule property inclusive of possession, dehors the possession claimed by the plaintiff, his grievance in the matter of the verdict rendered on 16.01.2024 is of no avail and revision lacks bonafides. It is pertinent to note that the suit filed by the review petitioner seeking specific

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RP.NO.372 OF 2024

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performance also was dismissed by the courts concerned and the decree attained finality. Therefore, simple prohibitory injunction granted to the plaintiff on finding possession of the property by the plaintiff does not require any interference by way of review.

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Accordingly the review petition is found to be absolutely merit less and is dismissed.

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Sd/- A. BADHARUDEEN JUDGE

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Mms

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RP.NO.372 OF 2024

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APPENDIX OF RP 372/2024

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PETITIONER’S ANNEXURES
Annexure 1CERTIFIED COPY OF WILL BEARING NO.
44/1997 OF SRO KOLLENGODE DATED
25.8.1997
Annexure 2CERTIFIED COPY OF REGISTERED POWER OF
ATTORNEY NO.144/1997 OFSRO,
KOLLENGODE DATED 29.11.1997
Annexure 3CERTIFIED COPY OF THE ADDITIONAL
WRITTEN STATEMENT DATED 23.5.2001 FILED
BY PARENTS, SHESHA IYER AND LAKSHMI
AMMAL, OF APPELLANT IN OS NO. 33/1999
ALONG WITH AFFIDAVIT AND VAKALATH
Annexure 4CERTIFIED COPY OF THE PLAINT IN OS NO.
82/2019 FILED ON 18.6.2019 BY THE
APPELLANT BEFORE THE SUB COURT,
PALAKKAD

Dilip Kumar v. A.S. Balasubramanian

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Dilip Kumar v. A.S. Balasubramanian

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