Kerala High Court
V.S.Babu vs C.S. Tahira on 4 June, 2024
Author: Kauser Edappagath
Bench: Kauser Edappagath
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
TUESDAY, THE 4TH DAY OF JUNE 2024 / 14TH JYAISHTA, 1946
CRP NO. 257 OF 2023
AGAINST THE ORDER DATED 29.03.2023 IN RP NO.5 OF 2021
IN O.S. NO.923/2008 OF ASSISTANT SESSIONS COURT/I
ADDITIONAL SUB COURT,ERNAKULAM
REVISION PETITIONER/PETITIONER IN RP/PLAINTIFF:
V.S.BABU
AGED 57 YEARS
S/O. SAYED MUHAMMED,HOUSE NO.36/1074 DAYA MANZIL,
JUDGE'S AVENUE ROAD, KALOOR, KOCHI, PIN - 682017
BY ADVS.
MANU VYASAN PETER
P.B.KRISHNAN(K/1193/1994)
P.B.SUBRAMANYAN(K/1145/2009)
SABU GEORGE(K/000711/1998)
B.ANUSREE(K/000951/2016)
MEERA P.(K/000191/2019)
AISWARYA MOHAN(K/274/2020)
RESPONDENTS/RESPONDENTS IN RP/DEFENDANTS:
1 SUHARA SAYED MOHAMMED
AGED 75 YEARS
W/O. LATE SAYED MOHAMMED, HOUSE NO.43/2560.
ANUGRAHA, SRM ROAD, MASJID LANE, KOCHI 682 018
AND ALSO RESIDING AT HOUSE NO.36/1074 DAYA
MANZIL, JUDGE'S AVENUE ROAD, KALOOR, KOCHI,
PIN - 682017
2 C.S. TAHIRA
AGED 58 YEARS
W/O. AZEEZ, HOUSE NO.43/2560, ANUGRAHA, SRM ROAD,
MASJID LANE, KOCHI, PIN - 682018
3 AZEEZ
AGED 65 YEARS
S/O ABDU, HOUSE NO.43/2560, ANUGRAHA, SRM ROAD,
2
CRP No.257 of 2023 &
CRP No.260 of 2023
MASJID LANE, KOCHI, PIN - 682018
4 SAJU JACOB
AGED 57 YEARS
S/O JACOB, CHAKKALAKKAL HOUSE, 36/836-A, AMBEDKAR
COLONY, KALOOR, ERNAKULAM, KOCHI -682017. ALSO
HAVING ADDRESS AT CHAKKALAKKAL HOUSE,
THRIKKANARVATTOM KARA, ERNAKULAM NORTH P.O,
PIN - 682018
5 MERCY SAJU
AGED 56 YEARS
W/O SAJU JACOB, CHAKKALAKKAL HOUSE, 36/836- A,
AMBEDKAR COLONY, KALOOR, ERNAKULAM, KOCHI -
682017. ALSO HAVING ADDRESS AT CHAKKALAKKAL
HOUSE, THRIKKANARVATTOM KARA, ERNAKULAM NORTH
P.O, PIN - 682018
6 SUNIL KUMAR
AGED 53 YEARS
NEEHARAM, AMBEDKAR COLONY ROAD, JUDGE'S AVENUE,
KALOOR, ERNAKULAM, KOCHI -682017 ALSO HAVING
ADDRESS AT NEEHARAM, T.C 8/734, GOWRI NAGAR,
PONGAMOODU, MEDICAL COLLEGE P.O,
THIRUVANANTHAPURAM, PIN - 695011
7 JASMINE JOSEPH
AGED 46 YEARS
W/O JOLLY T.G, VATTASSERIL HOUSE, AMBEDKAR COLONY
ROAD, JUDGE'S AVENUE, KALOOR, ERNAKULAM, KOCHI -
682017.ALSO HAVING ADDRSS AT VATTASSERIL HOUSE,
ULLOOR, MEDICAL COLLEGE P.O, THIRUVANANTHAPURAM,
PIN - 695011
8 BIJU MATHEW
AGED 48 YEARS
S/O K.J.MATHEW, MULLAPPILLIL HOUSE, AMBEDKAR
COLONY ROAD, JUDGE'S AVENUE, KALOOR, ERNAKULAM,
KOCHI -682017 AND ALSO HAVING ADDRESS AT
MULLAPPILLIL HOUSE, MURICKASSERY P.0, VATHIKUDY
VILLAGE, UDUMBANCHOLA, IDUKKI, PIN - 685604
9 JOLLY T.G
AGED 53 YEARS
S/O K.M.GEORGE, THOPPIL HOUSE, AMBEDKAR COLONY
ROAD, JUDGE'S AVENUE, KALOOR, ERNAKULAM, KOCHI -
682017 AND ALSO HAVING ADDRESS AT THOPPIL HOUSE,
THAIKATTUKARA, ALUVA, ERNAKULAM, PIN - 683106
3
CRP No.257 of 2023 &
CRP No.260 of 2023
10 MERCY FRANCIS
AGED 60 YEARS
W/O FRANCIS PARAYIL HOUSE, AMBEDKAR COLONY ROAD,
JUDGE'S AVENUE, KALOOR, ERNAKULAM, KOCHI -682017
AND ALSO HAVING ADDRESS AT PARAYIL HOUSE,
THAIKATTUKARA, ALUVA, ERNAKULAM, PIN - 683106
BY ADVS.
SULFIA M.A
P.A.ABDUL JABBAR
MUHAMMED SHAFFI(K/1201/2012)
SHAHIM BIN AZIZ(K/557/2016)
EHLAS HALEEMA C.K.(K/001446/2021)
ABDUL JALEEL.A(K/166/2003)
THIS CIVIL REVISION PETITION HAVING COME UP FOR
ADMISSION ON 04.06.2024, ALONG WITH CRP.260/2023, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
4
CRP No.257 of 2023 &
CRP No.260 of 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
TUESDAY, THE 4TH DAY OF JUNE 2024 / 14TH JYAISHTA, 1946
CRP NO. 260 OF 2023
AGAINST THE ORDER DATED 29.03.2023 IN R.P. NO.3/2021 IN
OS NO.7 OF 2006 OF ASSISTANT SESSIONS COURT/I ADDITIONAL
SUB COURT, ERNAKULAM
REVISION PETITIONER/PETITIONER IN RP/2ND DEFENDANT:
V.S.BABU
AGED 57 YEARS
S/O. SAYED MUHAMMED, HOUSE NO.36/1074 DAYA MANZIL
JUDGE'S AVENUE ROAD, KALOOR, KOCHI, PIN - 682017
BY ADVS.
MANU VYASAN PETER
P.B.KRISHNAN(K/1193/1994)
P.B.SUBRAMANYAN(K/1145/2009)
SABU GEORGE(K/000711/1998)
B.ANUSREE(K/000951/2016)
MEERA P.(K/000191/2019)
AISWARYA MOHAN(K/274/2020)
RESPONDENTS/RESPONDENTS IN RP/PLAINTIFF & 1ST DEFENDANT:
1 C.S. TAHIRA
AGED 58 YEARS
W/O. AZEEZ, HOUSE NO.43/2560, ANUGRAHA, SRM ROAD,
MASJID LANE, KOCHI, PIN - 682018
2 SUHARA SAYED MOHAMMED
AGED 75 YEARS
W/O. LATE SAYED MOHAMMED, HOUSE NO.43/2560,
ANUGRAHA, SRM ROAD, MASJID LANE, KOCHI AND
PRESENTLY RESIDING AT HOUSE NO.36/1074 DAYA
5
CRP No.257 of 2023 &
CRP No.260 of 2023
MANZIL, JUDGE'S AVENUE ROAD, KALOOR, KOCHI
682017., PIN - 682018
BY ADVS.
P.A.ABDUL JABBAR
SULFIA M.A.
MUHAMMED SHAFFI(K/1201/2012)
SHAHIM BIN AZIZ(K/557/2016)
EHLAS HALEEMA C.K.(K/001446/2021)
ABDUL JALEEL.A(K/166/2003)
THIS CIVIL REVISION PETITION HAVING COME UP FOR
ADMISSION ON 04.06.2024, ALONG WITH CRP.257/2023, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
6
CRP No.257 of 2023 &
CRP No.260 of 2023
Dated this the 4th day of June, 2024
ORDER
[CRP Nos.257/2023 & 260/2023]
The common order passed by the Additional Sub Court-
I, Ernakulam (for short 'the trial court') in R.P. No.3/2021 in
O.S. No.7/2006 and R.P. No.5/2021 in O.S. No.923/2008 are
under challenge in the above Civil Revision Petitions.
2. The petitioner herein is the 2 nd defendant in O.S.
No.7/2006 and the plaintiff in O.S. No.923/2008 in the trial
court. Both suits are for partition. Both the judgments were
challenged before this Court in O.P.(C) No.2867/2017. This
Court as per the Judgment dated 05.03.2019 set aside the
judgment and decree dated 06.03.2010 and remanded the
matter to the trial court for fresh disposal. Thereafter, by
common judgment, dated 20.10.2020 the trial court decreed
O.S. No.7/2006 and dismissed O.S. No.923/2008. Instead of
challenging those decree and judgment in first appeal, the
petitioner filed review petitions as R.P. No.3/2021 and R.P.
CRP No.257 of 2023 &
No.5/2021 before the trial court. The trial court dismissed
both those review petitions as per the impugned order.
3. Heard both sides.
4. The learned counsel for the petitioner fairly concedes
that the review petitions are not maintainable inasmuch as
the impugned decree and judgment in the review petitions
are appealable under Order 41 of the Code of Civil
Procedure. The learned counsel for the petitioner has invited
my attention to the latest decision of the Supreme Court in
Rahimal Bathu and others vs. Ashiyal Beevi [2023
LiveLaw (SC) 829]. In the said judgment, it was held that
where an appealable decree has been passed in a suit, no
revision should be entertained under Section 115 of the CPC
against an order rejecting on merits a review of that decree.
The proper remedy for the party whose application for
review of an appealable decree has been rejected on merits
is to file an appeal against that decree and if, in the
meantime, the appeal is rendered barred by time, the time
CRP No.257 of 2023 &
spent in diligently pursuing the review application can be
condoned by the court to which an appeal is filed. In view of
the dictum laid down in the above decision, these Civil
Revision Petitions are dismissed with liberty to the petitioner
to challenge the decree and judgment dated 20.10.2020 in
O.S. No.7/2006 and O.S. No.923/2008 before the appellate
court. The time spent in diligently pursuing the review
applications can be condoned by the appellate court as laid
down in the above decision.
These Civil Revision Petitions are accordingly dismissed
with the above observations.
Sd/-
DR. KAUSER EDAPPAGATH
JUDGE
BR
