IN THE HIGH COURT OF KERALA AT ERNAKULAM
RP.No. 769 of 2008(E)
1. ASHOK KUMAR, S/O R.P.PARAMASWERAN,
... Petitioner
Vs
1. RAVEENDRAN, S/O LATE R.P.PARAMESWARAN,
... Respondent
2. RAJESWARI, W/O P.K.VIJAYAN,
For Petitioner :SRI.JOSE PALLATTUKARAN
For Respondent : No Appearance
The Hon'ble MR. Justice K.P.BALACHANDRAN
Dated :24/07/2008
O R D E R
K.P.BALACHANDRAN, J.
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R. P. No.769 of 2008 in
R. S. A. No.467 of 2008
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Dated this the 24th day of July, 2008
ORDER
This review petition is filed by the
appellant through a counsel engaged afresh
seeking review of the judgment passed by this
Court on 24/06/08 in R.S.A.467/08 after
hearing counsel on both sides.
2. It is seen from the judges papers that
when this R.S.A came up for admission hearing
on 05/06/08 and counsel advanced arguments on
behalf of the appellant, this Court was of the
view that there is absolutely no merit in the
R.S.A, there being no substantial question of
law involved and while the appeal was about to
be dismissed in limine counsel submitted that
at least notice may be ordered to the
respondents for the limited purpose of having
the R.S.A referred to Adalath or for
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settlement otherwise on mediation as otherwise
an opportunity for the matter being settled
amicably between the brothers and sister would
be deprived of. It was in view of the said
submission that notice was issued to the
respondents on admission by speed post with
acknowledgment due and the case was adjourned
to 24/06/08.
3. When the matter came up before this
Court on 24/06/08, respondents also entered
appearance through counsel. Counsel for the
respondents submitted that the property which
is subject matter of partition having only 4
and odd cents was found to be not feasible to
be divided equally by metes and bounds so as
to render the plots worthy to be put to use
and so in final decree proceedings the
property was ordered to be put to auction
among the sharers and accordingly auction was
conducted and that in the auction respondents
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1 and 2 jointly bid the property for an amount
of Rs.18 lakhs and odd and also deposited an
amount of Rs.6,33,000/- and odd towards the
share of the appellant and only a nominal
amount remains to be deposited and that
happened on account of a mistake in
calculation and that there is no chance for
any compromise being effected between the
parties at that stage.
4. It was in the above circumstance that
counsel for the appellant submitted that the
appellant be granted at least three months’
time to surrender vacant possession of the
scheduled building in his occupation and
accordingly, time was granted also on consent
of counsel for the respondents. But for the
final request so made by the counsel for the
appellant, the R.S.A which was found to be
devoid of any merit there being no question of
law and much less any substantial question of
R. P. No.769 of 2008 -4-
law was to be dismissed in limine without any
relief at all granted to the appellant. It is
such a judgment that is sought to be got
reviewed by the appellant filing this review
petition through another lawyer giving up
engagement of the earlier counsel and
advancing complaints against him.
5. Counsel who is now appearing for the
appellant/petitioner submits that the shop
rooms were not included in the schedule to the
partition by the counsel in the court below
and the appellant was not aware of the non-
inclusion of the shop rooms in the plaint
because the plaint was drafted in English. If
that be so, I see that all the pleadings in
this R.S.A and also in this Review Petition
are in English and even the affidavit sworn to
by the petitioner in English shows that he has
signed in it without properly understanding
what he has sworn to as it does not contain a
R. P. No.769 of 2008 -5-
certification by the counsel that what all is
written in the affidavit is translated into
Malayalam and the deponent was made to
understand the contents to which he was
swearing. Such are methods which a
cantankerous litigant may adopt to avoid
parting with possession of property when he is
in possession of the property to the exclusion
of the other co-sharers.
6. Further, in view of the averment in
the Review Petition that the property which is
worth more than Rs.40 lakhs was bid in auction
by the respondents for a paltry amount of
Rs.18 lakhs the counsel for the petitioner was
asked as to whether the petitioner is prepared
to take the property for Rs.40 lakhs so that
he himself will get 1/3rd share out of the said
amount to be deposited or he needs to deposit
only 2/3rd of Rs.40 lakhs so that himself as
also the other sharers who are the respondents
R. P. No.769 of 2008 -6-
who purchased the property in auction will get
the benefit. Counsel for the respondents
agreed to that course, setting aside the sale
in favour of the respondents. Counsel for the
petitioner consulted the review petitioner who
is present in the court and submitted that he
is not prepared to take the property for Rs.40
lakhs but that he wants the property to be put
to public auction. In other words what was
done by the trial court was to order an
auction between the sharers and the appellant
wants the property to be put to auction in
public. Counsel for the respondent points out
that the decision taken by the final decree
court to put the property for auction between
the sharers was assailed before this Court in
W.P.(C) No.10989/07 by the present petitioner/
appellant and the action taken by the final
decree court was approved by this Court vide
judgment in the Writ Petition wherein it was
R. P. No.769 of 2008 -7-
observed by this Court that it is settled
practice that in a partition suit when the
property is incapable of being divided by
metes and bounds, in order to protect the
interests of all the parties, firstly the
property is proposed to be sold among sharers
and if it is not possible, in public auction
and that it is that course that was adopted by
the learned Munsiff in the final decree
proceedings and that it cannot be found fault
with. The appellant/petitioner who advances
contention on the lines aforementioned by
moving a review petition before this Court
does so despite a finding entered into by this
Court as regards the propriety of property
being put to auction between the sharers vide
judgment in W.P.(C) 10989/07 and deserves to
be confirmed. Similar is his conduct in making
allegations against his own counsel who
appeared before this court and attempted to
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safeguard his interest.
7. In the result, I dismiss this Review
Petition with cost of Rs.1.000/- to the
counsel for the respondents.
K.P.BALACHANDRAN,
JUDGE
kns/-