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.
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W.P.(C) No.21432 of 2010
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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
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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.
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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.
cks