IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.HARILAL
THURSDAY, THE 6TH DAY OF FEBRUARY 2014/17TH MAGHA, 1935
OP(C).No. 182 of 2010 (O)
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OS 549/2006 of I ADDL.SUB COURT,TRIVANDRUM
PETITIONER(S):
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SUDARSANAN, S/O.VASU, HINDU, AGED 73 YEARS, KANANVILA VEEDU, MADATHUVILAKOM VILLAGE BURMA ROAD, KUMARAPURAM, THIRUVANANTHAPURAM.
BY ADVS.SRI.V.SURESH SRI.G.SUDHEER
RESPONDENT(S):
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N.RAVINDRAN, CHARUVILAKATHU VEEDU, T.C.13/1509, PATTOM VILLAGE, BURMA ROAD THIRUVANANTHAPURAM.
BY ADV. SRI.G.S.REGHUNATH
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 06-02-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
## **APPENDIX**
## **PETITIONER'S EXHIBITS:**
|**EXT.P1**|**:**|TRUE COPY OF PLAINT IN O.S.545/06 ON THE FILE OF 1ST|
|---|---|---|
|||ADDL.SUB COURT, THIRUVANANTHAPURAM <br>THE|
|||PETITIONER<br>BEFORE<br>THE<br>ADDL.SUB<br>COURT,|
|||THIRUVANANTHAPURAM|
|**EXT.P2**|**:**|TRUE COPY IMPLEADING PETITION IA.9388/10 IN|
|||OS.549/06 DT.5.12.09 FILED BY THE RESPONDENT|
|||BEFORE ADDL.SUB COURT, THIRUVANANTHAPURAM|
|**EXT.P3**|**:**|TRUE COPY OF WRITTEN STATEMENT FILED BY THE|
|||PETITIONER IN OS.549.06 DT.18.1.10 BEFORE THE 1ST|
|||ADDL. MUNSIFF COURT, NEYYATTINKARA|
|**EXT.P4**|**:**|TRUE COPYT OF ORDER DT.8.2.10 IN IA.9388/09 IN|
|||OS.549/06 PASSED BY 1ST ADDL.SUB JUDGE,|
|||THIRUVANANTHAPURAM|
|**EXT.P5**|**:**|TRUE COPY OF DEED DT.10.9.09 OF PATTOM SUB|
|||REGISTRY OFFICE|
|**EXT.P6**|**:**|TRUE COPY OF REIVEW PETITION AS IA.3486/10 IN|
|||OS.549/06 BEFORE SUB COURT, TRIVANDRUM DT.2.7.10|
|**EXT.P7**|**:**|TRUE COPY OF PETITION FILED BY PETITIONER IN|
|||OS.549/06 DT.2.7.10 BEFORE SUB COURT, TRIVANDRUM|
|**EXT.P8**|**:**|TRUE COPY OF COUNTER AFFIDAVIT FILED BY THE|
|||RESPONDENT DT.5.7.10 IN OS.549/06 BEFORE THE SUB|
|||COURT, THIRUVANANTHAPURAM|
|**EXT.P9**|**:**|TRUE COPY OF COMMON ORDER IN IA.3786/10 &|
|||IA.3787/10 IN OS.549/06 OF THE COURT OF 1ST ADDL.|
|||SUB JUDGE, THIRUVANANTHAPURAM|
**//TRUE COPY//**
**P.S. TO JUDGE**
uj.
## **K.HARILAL,J.**
**---------------------------------O.P.(C) No.182 OF 2010 ----------------------------------Dated this the 6[th] February, 2014**
## **JUDGMENT**
Petitioner who is defendant in O.S.549/2006 on the file of Ist Additional Sub Court, Thiruvananthapuram as well as petitioner in I.A.3786/2010 and I.A.3787/2010 filed therein. The above suit was filed by Sri.N.Bhaskaran for partition and injunction against defendant. During the pendency of the suit the plaintiff Bhaskaran died unmarried and issueless. The respondent herein filed I.A.9388/10 for getting himself impleaded in the suit on the basis of settlement deed bearing No.2418/2009 dated 10/9/2009 alleged to have been created by Bhaskaran in favour of the respondent. The petitioner resisted the said application and finally the petition was allowed after hearing both parties. On 1/7/2010 the case was listed for evidence in consequence of which the petitioner happened to peruse the original documents, the settlement deed No.2418/2009 produced by the respondent. At that time, the petitioner understood that signature in the settlement deed was not that of the deceased original plaintiff. Since a copy of the document was not served on the
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petitioner he could not verify records in this case. Consequently delay of 145 days was also occurred in filing the petition. Hence I.A.3787/2010 was filed for condoning the delay of 145 days and I.A.3786/2010 was filed for reviewing earlier order allowing impleadment.
2. The respondent herein contended that the application to review order is not maintainable. The respondent produced original settlement deed No.2418/2009 executed by the original plaintiff in favour of the respondent. The said settlement deed itself shows that the deceased original plaintiff appeared before the Sub Registrar office and complied with all the formalities for registration, the document was executed and registered. The petitioner had not complained so far, he had not received copy of the settlement deed and the thumb impression of the original plaintiff was fixed in the settlement deed also. Hence he prayed for dismissal of both petitions.
3. Learned counsel for the petitioner advanced arguments assailing the findings in the impugned order under challenge. Ext.P4 order is passed without noting the error apparent on the face of the record. The court has not compared the signature in the plaint with those in Ext.P5 at the time of passing of Ext.P4 order. Two signatures
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are totally dissimilar. Therefore, it is evident that Ext.P5 is not signed by the plaintiff who signed Ext.P1 plaint. Ext.P1 plaint also shows thumb impression. So it is very easy to compare the signature in Ext.P1 with the thumb impression in settlement deed. So dismissal of Ext.P7 application is without any reason. So also, court below has not shown any reason for refusing to condone delay. The delay was not inordinate. Learned counsel for the petitioner further submits that if the petitioner is not allowed to challenge the impleading petition application in view of the disparity in signature found in the plaint and settlement deed which is said to have been put by the deceased Bhaskaran, he would be estopped from raising the said contention at the time of trial in view of the decision reported in **Dashrath Rao Kate v. Brij Mohan Srivastava (2010 (1) SCC 277)** . Forgoing reasons compelled him to file Ext.P6 petition to review when he found out dissimilarity in the signatures. The dissimilarity in signatures was found out in later stage only and there is no latches or negligence in verifying the signatures in the settlement deed in view of the fact that copy of the settlement deed was not served to him.
4. Per contra, the learned counsel for the respondent advanced arguments to justify the impugned order under challenge.
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According to him, there is no error or mistake apparent on the face of record warranting interference under review jurisdiction. So also there are no other sufficient reasons to obtain a review of the order passed earlier against him. There is no case that after exercising due diligence, the matter was not within the knowledge of the petitioner.
5. I have given my anxious consideration on the arguments advanced by the counsel for the petitioner and the counsel for the respondent.
6. The short question that arises for consideration in this original petition is whether the trial court has failed to exercise jurisdiction vested in it or to have acted in exercise of its jurisdiction illegally or with material irregularity.
7. Coming to the impugned order under challenge it can be seen that Ext.P4 order was passed after hearing both parties. The apprehension expressed by the learned counsel for the petitioner is that there was a summary enquiry under Order XXII Rule 5 of of Code of Civil Procedure. Therefore the findings arrived at in that enquiry may be a bar against the right to challenge the genuineness of the settlement deed under which he had been impleaded in the suit, during the course of trial. Going by Ext.P4, it is seen that no enquiry
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under order XXII R.5 was contemplated so as to find out the genuineness of the signature found in the settlement deed. The above impleading petition was allowed on a prima facie satisfaction on production of the settlement deed, without considering the genuineness of the document or the devolution of interest created by the settlement deed. Though the learned counsel for the petitioner drew my attention to Dashrath Rao’s case (Supra), I am of the opinion that the proposition laid down in the above decision will not come into application as the facts of that case is entirely different from the instant case. In the decision cited above, the question in controversy raised subsequently had already been finally decided earlier under O.22 R.5 of the CPC in the same suit. In that context, the Apex Court held that the same question cannot be re-agitated again in a later stage in the same suit. In view of the above arguments, it is made clear that the impleadment of the respondent will not stand in the way of challenging the genuineness of the settlement deed No.2418/2009 said to have been executed by deceased Bhaskaran, with all means provided under law.
8. Going by Ext.P9 order, I find no reason to interfere with the order as there is no error or mistake apparent on the face of the
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record. So also the petitioner has no case that in spite of due diligence he could not have noticed the signature in the settlement deed produced by the respondent. In the above view, I find that there is no illegality or impropriety in the impugned order passed in I.A.No.3786 of 2010 and 3787 of 2010.
Hence, this Original Petition (Civil) is disposed of with the above observations.
**K.HARILAL, JUDGE.**
## **uj/stu**
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**K.HARILAL, Judge.**
uj.
