High Court Kerala High Court

Subramaniyan vs Gopinadhan on 7 October, 2010

Kerala High Court
Subramaniyan vs Gopinadhan on 7 October, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 21432 of 2010(O)


1. SUBRAMANIYAN, AGED 55 YEARS,
                      ...  Petitioner

                        Vs



1. GOPINADHAN, AGED 42 YEARS,
                       ...       Respondent

                For Petitioner  :SRI.N.K.MOHANLAL

                For Respondent  :SMT.R.RANJINI

The Hon'ble MR. Justice THOMAS P.JOSEPH

 Dated :07/10/2010

 O R D E R
                              THOMAS P. JOSEPH, J.
                            --------------------------------------
                             W.P.(C) No.21432 of 2010
                            --------------------------------------
                    Dated this the 7th day of October, 2010.

                                      JUDGMENT

This petition is at the instance of petitioner/plaintiff No.2 in I.A.No.903 of

2010 in O.S.No.775 of 2003 of the court of learned Principal Munsiff, Ernakulam.

There is a preliminary decree followed by an application for passing a final

decree for partition of plaint B schedule. In the course of final decree proceeding

Advocate Commissioner inspected the property and submitted a report

effecting division of the property (around three cents). Filing objection to the

division of property made by the Advocate Commissioner, respondent wanted

the entire property to be sold in public auction. Petitioner filed I.A.No.8680 of

2009 under Section 3 of the Partition Act offering to purchase share of

respondent. That application was objected by the respondent who, in turn filed

I.A.No.645 of 2010 seeking to purchase the share of petitioner. Matter came up

for hearing before the learned Munsiff on 28.01.2010. That day learned Munsiff

passed the impugned common order dismissing I.A.No.8680 of 2009 and

allowing I.A.No.645 of 2010. To review that common order petitioner filed Ext.P1

(I.A.No.903 of 2010). That application was dismissed by the learned Munsiff.

Hence this Writ Petition. It is contended by learned counsel that the parties

were not heard on I.A.No.8680 of 2009 and 645 of 2010. It is also contended

that respondent who had suggested public auction of the property has preferred

I.A.No.645 of 2010 to purchase share of petitioner and that application has

WP(C) No.21432/2010

2

ultimately been upheld by the learned Munsiff. Learned counsel for respondent

contended that there is nothing wrong in allowing I.A.No.645 of 2010. It is

pointed out that Ext.P1, application is filed to review a common order.

2. True that a single application has been filed to review the

common order but that is only an irregularity, at any rate. It is not disputed

that parties were not heard on I.A.Nos.8680 of 2009 and 645 of 2010. What

the learned Munsiff has stated is that the junior advocate of counsel for

petitioner was present and even if the matters were heard there would not have

been a different order. That view, I am unable to accept. Question is not

whether learned Munsiff would have passed a different order on hearing

counsel on both sides. Petitioner contended that he was not given an

opportunity to address arguments on the applications and that his application

should have been preferred to the application filed by the respondent. In the

circumstances I am inclined to give an opportunity to both sides to address their

arguments on the applications.

Resultantly this petition is allowed in the following lines:

i. Ext.P2, order on I.A.No.903 of 2010 in O.S.No.775 of 2003 of the

court of learned Principal Munsiff, Ernakulam is set aside and that application will

stand allowed.

WP(C) No.21432/2010

3

ii. Consequently the common order dated 28.01.2010 on

I.A.Nos.8680 of 2009 and 645 of 2010 also is reviewed and those applications

are remitted to the court of learned Principal Munsiff, Ernakulam for fresh

decision after hearing counsel on both sides.

             `                                THOMAS P.JOSEPH,
                                                   Judge.




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