# **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN TUESDAY, THE 31[ST] DAY OF OCTOBER 2023/9TH KARTHIKA, 1945 OP(C) NO.1325 OF 2022**
**AGAINST THE ORDER DATED 13.01.2022 IN I.A.NO.695/2020 IN O.S 18/2018 OF SUB COURT, OTTAPPALAM**
## **PETITIONER/PETITIONER/PLAINTIFF:**
PRABHAVATHY, AGED 75 YEARS, W/O.GOVINDANKUTTY, "SREEVALSAM", KALLUVAZHI P.O, OTTAPALAM TALUK, PALAKKAD DISTRICT, PIN – 679514.
BY ADV.P.JAYARAM
## **RESPONDENT/RESPONDENT/DEFENDANT:**
GIRISH, AGED 48 YEARS, S/O.LATE PANKAJAM, "SREEVIHAR", P.O PUNCHAPADAM, OTTAPALAM TALUK, PALAKKAD DISTRICT, PIN – 678634.
BY ADVS. LEELA R. M.SREELAKSHMI(K/370/2007) ARUN SEBASTIAN(K/759/2020)
**THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 31.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
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## **JUDGMENT**
## **Dated, this the 31[st] October, 2023**
**Ext.P8 order is under challenge in this Original Petition, which dismissed an application for review of Ext.P4 order, as per which the suit, O.S.No.18/2018, of the Sub Court, Ottapalam, was permitted to be withdrawn.**
**2. The said suit was one for partition and the respondent is none other than the plantiff's elder sister's son. In respect of the property, which was a subject matter of the suit, writ petitions were pending on the question of issuance of revenue records in favour of the mother of the defendant. Taking into account the relationship between the parties, mediation was attempted before the High Court, but failed. It is the case of the petitioner that at the interference of some of the relatives, the petitioner felt it not conducive to proceed with**
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**the suit in view of the relationship between the parties and, therefore, an application was filed before the Sub Court, Ottapalam to withdraw the above suit O.S. NO.18/2023. As per Ext.P4 order dated 06.12.2019, the same was allowed by the learned Sub Judge, reserving unto the plaintiff the liberty to institute fresh suit. However, the plaintiff was mulcted with the costs of the defendant.**
**3. The subsequent conduct of the defendant in instituting a fresh suit, O.S.No.102/2020, is one among the reasons espoused for seeking review of Ext.P4 order. However, the review was dismissed by the learned Sub Judge vide Ext.P8 order, stating that the grounds for review canvassed does not fall within contours of order 47 Rule 1. As regards the last limb of Order 47 Rule 1, that is to say, “for any other sufficient reason”, the learned Sub Judge found that such reason should be analogous to those specified in the Rule.**
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**Aggrieved by Ext.P8 order, the petitioner in the Review Petition is before this Court invoking the jurisdiction under Article 227 of the Constitution of India.**
**4. Heard Sri.P.Jayaram, learned counsel for the petitioner and Smt.R.Leela, learned counsel for the respondent.**
**5. This Original Petition was seriously opposed by the learned counsel for the respondent, pointing out that the mediation efforts, now claimed, is neither referrable to Ext.P2 application for withdrawal, nor to Ext.P4 order permitting withdrawal. According to the learned counsel, there was no mediation, except the one at the High Court, which failed. There is no interference by any of the relatives and the plantiff/petitioner chose to withdraw the suit out of his own volition. As a matter of fact, Ext.P2 application to withdraw the suit, with**
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**liberty to file a fresh one, was seriously opposed by the respondent herein and it was on the respondent's objection that the learned Sub Judge awarded cost, even when it allowed the application for withdrawal of the suit with liberty to file fresh one.**
**6. Per contra, the learned counsel for the petitioner would contend that although the mediatory efforts were not specifically pleaded in Ext.P2 application and hence not referred to in Ext.P4 order, the same is a fact and that the subsequent conduct of the respondent herein in instituting a fresh suit, O.S.No.102/2020, coupled with an Execution Petition to realise the cost awarded in Ext.P4 order is what which triggered the petitioner/plaintiff to seek a review of Ext.P4 order. The learned counsel would submit that even if the factum mediation is not specifically pleaded, the fact remains that the petitioner/plaintiff is the mother's sister of**
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**the defendant/respondent. According to the learned counsel, the petitioner will be put to serious prejudice and injury, if the review petition is not allowed, since the petitioner is aged 74 years, whereas the same would not cause any prejudice, whatsoever, to the defendant/ respondent. In short, Ext.P8 order is liable to be interfered with and Ext.P4 order is liable to be reviewed on the basis of the subsequent events, is the submission of the learned counsel.**
**7. Having heard the learned counsel appearing on both sides, this Court finds force in the submissions made by the learned counsel for the petitioner. True, going by the pure theoretical aspects of Order 47 Rule 1, it may be difficult to conceive the present reasons in seeking review of Ext.P4 order, except the last limb, which speaks of 'any other sufficient reason'. The subsequent events referred to by the learned counsel for the petitioner, one of which is**
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**specifically pleaded in Ext.P6 application, are not denied before me by the respondent. The two events are the filing of O.S.No.102/2020, as also, the filing of an Execution Petition for realising the cost awarded in Ext.P4 order. This Court fully appreciates the contention that the relationship between the parties was also one among the consideration, which prompted the plaintiff to withdraw the suit. More than anything else, this Court feels that the petitioner, who is aged 74 years, deserves a sympathetic approach in the matter of review, since she would be put to serious prejudice, in case she is to institute a fresh suit and to wait for its logical culmination. This Court also notice that the Honourable Supreme Court in Jagmohan Singh v. State of Punjab and Others [(2008) 7 SCC 38] held that Order 47 Rule 1 does not preclude the High court or a court to take into consideration any subsequent event and that if imparting justice in a given situation is the**
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**goal of the judiciary, the court may take into consideration the subsequent events, of course on rare occasions.**
**8. This Court is of the opinion that the instant facts constitute one such rare occasion, where the non-consideration of the review may cause prejudice and injury to the plaintiff, whereas allowing the same would not cause any such prejudice to the defendant/respondent. By way of abundant caution, this Court may draw its power under Article 226 of the Constitution as well, in holding that the review petition is liable to be allowed, in the peculiar facts and circumstances of this case.**
**9. In the result, Ext.P8 order is set aside; Ext.P6 application seeking review of Ext.P4 order is allowed and the Sub Court, Ottapalam is directed to proceed with the suit, O.S.No.18/2018, in accordance with law. Since the**
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**suit is of the year 2018 and also in view of the request made by the learned counsel for the respondent/defendant, there will be a direction to the learned Sub Judge to try and dispose of the said suit as expeditiously as possible, at any rate, within a period of six months from the date of receipt of a copy of this judgment.**
**Accordingly, this Original Petition is**
## **disposed of.**
**Sd/-**
## **C.JAYACHANDRAN, JUDGE**
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## **APPENDIX OF OP(C) 1325/2022**
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE PLAINT IN O.S. NO. 18/2018, ON THE FILES OF THE COURT OF SUBORDINATE JUDGE, OTTAPALAM.
- EXHIBIT P2 TRUE COPY OF THE AFFIDAVIT IN I.A.NO. 1148/2019 IN OS.NO.18/2018 ON THE FILES OF THE COURT OF SUBORDINATE JUDGE, OTTAPALAM.
- EXHIBIT P3 TRUE COPY OF THE COUNTER STATEMENT IN I.A.NO.1148/2019 IN O.S.NO.18/2018 ON THE FILES OF THE COURT OF SUBORDINATE JUDGE, OTTAPALAM.
- EXHIBIT P4 TRUE COPY OF THE JUDGMENT DATED 6/12/2019 IN I.A. NO.1148/2019 IN O.S. NO.18/2018 ON THE FILES OF THE COURT OF SUBORDINATE JUDGE, OTTAPALAM.
- EXHIBIT P5 TRUE COPY OF THE DECREE DATED 18/12/2019 IN O.S NO.18/2018 ON THE FILES OF THE COURT OF SUBORDINATE JUDGE, OTTAPALAM.
- EXHIBIT6 TRUE COPY OF THE AFFIDAVIT AND APPLICATION IN I.A. NO.695/2020 IN OS NO. 18/2018 ON THE FILES OF THE COURT OF SUBORDINATE JUDGE, OTTAPALAM.
- EXHIBIT7 TRUE COPY OF THE COUNTER STATEMENT FILED BY THE RESPONDENT IN I.A. NO.695/2020 IN OS NO.18/2018 ON THE FILES OF THE COURT OF SUBORDINATE JUDGE, OTTAPALAM.
EXHIBIT8 TRUE COPY OF THE ORDER DATED 13-01-2022 IN I.A. NO.695/2020 IN OS NO.18/2018 ON THE FILES OF THE COURT OF SUBORDINATE JUDGE, OTTAPALAM.
- EXHIBIT P9 TRUE COPY OF THE PLAINT IN O.S. NO. 102/2020 ON THE FILES OF THE MUNSIFF'S COURT, OTTAPALAM.
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EXHIBIT P10 TRUE COPY OF THE AFFIDAVIT IN I.A.NO. 2017/2022 IN O.S. NO.102/2020 ON THE FILES OF THE MUNSIFF'S COURT, OTTAPALAM.
EXHIBIT P11 TRUE COPY OF THE E.P NO.27/2020 IN O.S NO.18/2018 ON THE FILES OF SUB COURT, OTTAPPALAM
