Aliyot Dinesh Babu C and others v. Aliyot Ramachandran and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT :** **THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH** **TUESDAY, THE 16TH AUGUST 2011 / 25TH SRAVANA 1933** **OP(C).No. 1309 of 2011(O)** **---------------------OS.670/1999 OF MUNSIFF COURT I, KOZHIKODE** **.................** ## **PETITIONERS :** - **--------------------** **1. ALIYOT DINESH BABU.C, S/O.VELAYUDHAN, KOTTOOLI AMSOM AND DESOM, KOZHIKODE DISTRICT.** **2. ALIYOT GEETHA, D/O.VELAYUDHAN, KOTTOOLI AMSOM AND DESOM, KOZHIKODE DISTRICT.** **3. ALIYOT LATHA, D/O.VELAYUDHAN, KOTTOOLI AMSOM AND DESOM, KOZHIKODE DISTRICT.** **4. ALIYOT GIRISH, S/O.VELAYUDHAN, KOTTOOLI AMSOM AND DESOM, KOZHIKODE DISTRICT.** **5. ALIYOT SUDHA, D/O.VELAYUDHAN, KOTTOOLI AMSOM AND DESOM, KOZHIKODE DISTRICT.** **BY ADV. SRI.K.M.SATHYANATHA MENON** ## **RESPONDENT(S):** - **-------------------------** **1. ALIYOT RAMACHANDRAN, S/O.IMBICHUTTY, VALIYAPARAMBIL HOUSE, P.O.RAMANATTUKARA-673 633, KOZHIKODE DISTRICT.** **2. ALIYOT BABU, S/O.IMBICHUTTY, KOTTOOLI AMSOM AND DESOM, P.O.RAMANATTUKARA-673633, KOZHIKODE DISTRICT.** **3. ALIYOT VIJAYAN, S/O.IMBICHUTTY, KOTTOOLI AMSOM AND DESOM, P.O.RAMANATTUKARA-673633, KOZHIKODE DISTRICT.** **4. ALIYOT SURESH, S/O.IMBICHUTTY, KOTTOOLI AMSOM AND DESOM, P.O.RAMANATTUKARA-673633, KOZHIKODE DISTRICT.** **...2/-** **OP(C).No. 1309 of 2011(O) -2-** **5. ALIYOT SETHUMADHAVAN, S/O.IMBICHUTTY, KOTTOOLI AMSOM AND DESOM, P.O.RAMANATTUKARA-673633, KOZHIKODE DISTRICT.** **6. ALIYOT MADHUSOODHANAN, S/O.IMBICHUTTY, KOTTOOLI AMSOM AND DESOM, P.O.RAMANATTUKARA-673633, KOZHIKODE DISTRICT.** **7. ALIYOT MYTHILI, D/O.IMBICHUTTY, PILAKKOTT HOUSE, AZHINJILAM-673654, KOZHIKODE DISTRICT.** **8. ALIYOT SAROJINI, D/O.IMBICHUTTY, VALIYAPARAMBIL HOUSE, P.O.RAMANATTUKARA-673633, KOZHIKODE DISTRICT.** **9. ALIYOT SOUMINI, D/O.IMBICHUTTY, MUNDANKATTUTHAZHAM HOUSE, P.O.RAMANATTUKARA-673633, KOZHIKODE DISTRICT.** **10. ALIYOT VINODHINI, D/O.IMBICHUTTY, CHELIYIL HOUSE, KOTTAPPURAM.P.O, PULIKKAL VIA, MALAPPURAM DISTRICT, PIN-679518.** **11. ALIYOT VISWANATHAN, S/O.KESAVAN, CHATHAMADATHTHAZHAM HOUSE, P.O.KOTTOLI, KOZHIKODE DISTRICT, PIN-673106.** **12. ALIYOT LEELA, S/O.KESAVAN, CHATHAMADATHTHAZHAM HOUSE, P.O.KOTTOLI, KOZHIKODE DISTRICT, PIN-673106.** **13. ALIYOT DHARMARAJAN, S/O.APPUKUTTY, ALIYOT HOUSE, KUTHIRAVATTOM.P.O, KOTTOLI AMSOM, PARAYANCHERI DESOM, KOZHIKODE DISTRICT, PIN-673106.** **14. ALIYOT THANKAM, D/O.APPUKUTTY, ALIYOT HOUSE, KUTHIRAVATTOM.P.O, KOTTOLI AMSOM, PARAYANCHERI DESOM, KOZHIKODE DISTRICT, PIN-673106.** **15. ALIYOT SUNANDA, D/O.APPUKUTTY, ALIYOT HOUSE, KUTHIRAVATTOM.P.O, KOTTOLI AMSOM, PARAYANCHERI DESOM, KOZHIKODE DISTRICT, PIN-673106.** **16. ALIYOT LATHIKA, D/O.APPUKUTTY, ALIYOT HOUSE, KUTHIRAVATTOM.P.O, KOTTOLI AMSOM, PARAYANCHERI DESOM, KOZHIKODE DISTRICT, PIN-673106.** **...3/-** **OP(C).No. 1309 of 2011(O) -3-** **17. ALIYOT THANKAM, D/O.THAMU, PANNIYANKARA AMSOM AND DESOM, KOZHIKODE DISTRICT,PIN-673106.** **18. ALIYOT MANDAKINI, D/O.THAMU, KOTTOOLI AMSOM, PARYANCHERI DESOM, KOZHIKODE DISTRICT, PIN-673106.** **19. ALIYOT SIVADASAN, S/O.VELAYUDHAN, KOTTOOLI AMSOM, PARYANCHERI DESOM, KOZHIKODE DISTRICT, PIN-673106.** **20. ALIYOT LALURAJ, S/O.VELAYUDHAN, KOTTOOLI AMSOM, PARYANCHERI DESOM, KOZHIKODE DISTRICT,PIN-673106.** **21. ALIYOT LEELA,W/O.VELAYUDHAN, KOTTOOLI AMSOM, PARYANCHERI DESOM, KOZHIKODE DISTRICT, PIN-673106.** **22. LALITHA, D/O.VELAYUDHAN,'RAGHU RESHMI', ANNIE HALL ROAD,NAGARAM AMSOM & DESOM, KOZHIKODE-673106.** **23. RAJEEV PANNAKKAL, S/O.VELAYUDHAN, 'RAGHU RESHMI', ANNIE HALL ROAD, NAGARAM AMSOM & DESOM, KOZHIKODE-673106.** **24. SANJEEV PANNAKKAL, S/O.VELAYUDHAN, 'RAGHU RESHMI', ANNIE HALL ROAD, NAGARAM AMSOM & DESOM, KOZHIKODE-673106.** **25. SUDHA RAJAN, D/O.VELAYUDHAN, 'RAGHU RESHMI', ANNIE HALL ROAD, NAGARAM AMSOM & DESOM, KOZHIKODE-673106.** **R23, R24 & R25 BY ADVS. SRI.V.V.SURENDRAN SRI.P.A.HARISH** **SMT. RESMI NANDANAN** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 16/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Mn** **...4/-** **OP(C).No. 1309 of 2011(O)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **EXT.P1 : COPY OF APPLICATION FOR AMENDMENT FILED BY THE PETITIONERS IN O.S. NO. 670/1999 DATED 8.12.2009 BEFORE THE MUNSIFF'S COURT, KOZHIKODE.** - **EXT.P2 : COPY OF THE COUNTER AFFIDAVIT FILED BY THE DEFENDANTS 23 TO 26 IN I.A. NO. 4437/2009 IN O.S. NO. 670/1999 BEFORE THE MUNSIFF'S COURT, KOZHIKODE.** - **EXT.P3 : COPY OF THE ORDER DATED 5.1.2010 IN I.A. NO. 4437/2009 IN O.S. NO. 670/1999 PASSED BY THE MUNSIFF'S COURT, KOZHIKODE.** - **EXT.P4 : COPY OF THE JUDGMENT DATED 24.9.2010 IN WP(C) 5758/2010.** - **EXT.P5 : COPY OF THE JUDGMENT DATED 3.2.2010 ON ADDITIONAL ISSUE IN O.S NO. 670/1999 PASSED BY THE MUNSIFF'S COURT, KOZHIKODE.** - **EXT.P6 : COPY OF I.A. NO. 3889/2010 IN O.S. NO. 670/1999 DATED 20.11.2010 FILED BY THE PETITIONERS BEFORE THE MUNSIFF'S COURT, KOZHIKODE.** - **EXT.P7 : COPY OF THE ORDER DATED 7.3.2011 IN I.A. NO. 3889/2010 IN O.S. NO. 670/1999 PASSED BY THE MUNSIFF'S COURT, KOZHIKODE.** ## **RESPONDENT'S EXHIBITS - NIL** ## **//TRUE COPY//** ## **P.S. TO JUDGE** **Mn** ## **THOMAS P.JOSEPH, J.** **==================================== O.P(C) No.1309 of 2011 ==================================== Dated this the 16[th] day of August, 2011** ## **J U D G M E N T** Exhibit P7, order dated 07.03.2011 on I.A. No.3889 of 2010 in O.S. No.670 of 1999 passed by the court of learned Additional Munsiff-I, Kozhikode refusing to review Ext.P5, finding dated February 03, 2010 regarding sufficiency of court fee is under challenge. 2. Petitioners sought partition of the suit properties. The suit was dismissed against which petitioners filed A.S. No.172 of 2004. That appeal was allowed and the case was remitted to the trial court for fresh decision allowing petitioners to seek amendment of plaint pursuant to a document which respondents relied in the course of trial. After remand petitioner filed I.A. No.3591 of 2009 for amendment of plaint. That application was allowed. Respondent filed additional written statement challenging valuation of the relief relating to the document in question and the court fee paid. While so, petitioner filed I.A. No.4437 of 2009 for further amendment of plaint to incorporate a declaration that the document in question (Ext.B15 ## **O.P(C) No.1309 of 2011** -: 2 :- marked in the trial court) is null and void and not binding on petitioners, instead of the original plea that the document be cancelled. Learned Munsiff disallowed that prayer which petitioner challenged in this Court in W.P(C) No.5758 of 2010. This Court disposed of that Writ Petition by Ext.P4, judgment dated September 24, 2010. This Court observed that reason stated by the learned Munsiff that amendment sought for is only in the relief portion while averments in the plaint continued to be as before is correct and hence there is no reason to interfere with the order dismissing I.A. No.4437 of 2009. This Court however thought that it is appropriate that notwithstanding dismissal of the application petitioners are given opportunity to file a fresh application seeking the same relief (as prayed for in I.A. No.4437 of 2009) and granting that permission, the Writ Petition was disposed of. Petitioners were directed to file such application within one month from the date of Ext.P4, judgment. 3. Admittedly petitioners did not seek any such amendment as permitted by this Court in Ext.P4, judgment. Instead, petitioners sought review of the finding dated February 03, 2010 regarding sufficiency of valuation of the relief relating to the document in question. That application was dismissed by **O.P(C) No.1309 of 2011** ## -: 3 :- Ext.P7, order. Learned Munsiff held that the fact that a decision based on which a finding has been entered has been subsequently overruled is not a ground for review. 4. It is contended by learned counsel for respondent that in I.A. No.3889 of 2010 it was pointed out that petitioners did not file fresh application for amendment in the lines of I.A. No.4437 of 2009 because in the meantime the Supreme Court has pronounced verdict as to the court fee payable in the matter. According to the learned counsel that decision of the Supreme Court being a declaration of law must prevail and in the circumstances petitioners were not required to file fresh application (in the lines of I.A. No.4437 of 2009). It is pointed out that petitioners are entitled to the benefit of the decision in **Satheedevi v. Prasanna** 2010(2) KLT 642) rendered subsequent to Ext.P5, finding of the learned Munsiff. 5. In response it is contended by learned counsel for petitioners that this Court had granted opportunity to the petitioners to amend the plaint in the same line as prayed for in I.A. No.4437 of 2009 notwithstanding its dismissal. But that opportunity was not availed by petitioners. It is pointed out by learned counsel that subsequent decision of the Supreme Court ## **O.P(C) No.1309 of 2011** ## -: 4 :- overruling the decision based on which finding is entered by the learned Munsiff is not a ground to seek review as Explanation to Order XLVII Rule 1 of the Code of Civil Procedure (for short, the Code”) specifically say. 6. It is not disputed before me that the decision in **Satheedevi v. Prasanna** (supra) was rendered after Ext.P5, finding of the learned Munsiff. In other words Ext.P5, finding was based on the decision of this Court as it stood then. As per the said decision petitioners were required to pay court fee based on the market value of property in respect of which the document is assailed is concerned. It is later that in **Satheedevi v. Prasanna** (supra)the Supreme Court overruled the earlier decisions and stated that valuation need be in accordance with the consideration stated in the document under challenge. 7. Now the question is whether Ext.P5, finding of learned Munsiff is liable to be reviewed in view of the subsequent decision of the Supreme Court. It is not as if learned Munsiff has overlooked the decision of the Supreme Court and rendered a finding. Admittedly the decision was rendered based on the decisions of this Court as it stood then and it is later that it was decided by the Supreme Court in **Satheedevi v. Prasanna** ## **O.P(C) No.1309 of 2011** ## -: 5 :- (supra) that the valuation need be in accordance with the consideration mentioned in the document. The Explanation to Order XLVII Rule 1 of the Code says that the fact that the decision on a question of law on which the judgment of the court is based has been reversed or modified by the subsequent decision of a superior court in any other case shall not be a ground for review ## of such judgment. In **Shanti Devi v. State of Haryana** (2000 (1) KLT 697) the judgment sought to be reviewed itself was overruled in a later case. But the Supreme Court held that subsequent decision is not a ground for review of the earlier decision. Position in this case is worse since a review is sought on the basis of a subsequent decision of the Supreme Court overruling the decisions based on which learned Munsiff rendered finding. In the light of the Explanation in Order XLVII Rule 1 of the Code which I have stated above and the decision in **Shanti Devi v. State of Haryana** (supra) review cannot be allowed. 8. At this stage learned counsel requested that petitioners may be granted time to file fresh application for amendment as observed in Ext.P4, judgment of this Court. It is contended that petitioners did not opt for filing fresh application only because in the meantime Supreme Court had rendered ## **O.P(C) No.1309 of 2011** ## -: 6 :- ## decision in **Satheedevi v. Prasanna.** 9. Request is opposed by learned counsel for respondent. It is pointed out that suit is of the year 1999 and that the only attempt of petitioners is to protract the proceedings. It is also submitted that no such request is made in this Original Petition. 10. This Court had in Ext.P4, judgment granted petitioners permission to file proper application for amendment of the plaint in the lines of I.A. No.4437 of 2009. But that was not done, according to petitioners for the reason that in the meantime the Supreme Court rendered decision in **Satheedevi v. Prasanna.** I am inclined to give a further opportunity to petitioners to file application as directed in Ext.P4 but subject to terms of costs. Resultantly, Original Petition is disposed of as follows: The challenge to Ext.P7, order is rejected. However, petitioners are permitted to file fresh application for amendment as permitted in Ext.P4, judgment within a month's time from the date on which copy of this judgment is notified to be delivered ## **O.P(C) No.1309 of 2011** **==> picture [41 x 9] intentionally omitted <==** subject to the condition that petitioners paid `10,000/- (Rupees Ten thousand only) to the contesting respondents (respondents 23 to 25) through their counsel appearing in this Court as costs within three weeks from this day. ## **THOMAS P. JOSEPH, JUDGE.** vsv