Kerala High Court
Mohammed Kassim vs R Premchand 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
OP(C) NO. 709 OF 2024
AGAINST THE ORDER/JUDGMENT DATED 12.07.2021 IN
OS NO.85 OF 1971 OF ADDITIONAL DISTRICT COURT (ADHOC)-IV,
THIRUVANANTHAPURAM
PETITIONER/LEGAL HEIR OF 1ST DEFENDANT IN OS 85/1971-
PETITIONER NOT A PARTY IN OS NO.85/1971:
MOHAMMED KASSIM
AGED 85 YEARS
THEKKEYVILA MANTHARA DESOM
EDAVA VILLAGE, EDAVA P.O,
REPRESENTED BY POWER OF ATTORNEY HOLDER
NAZEER AHAMMAD, PEERAVILAKAM,
VETTAKKADA,EDAVA P O, PIN - 695311
BY ADV MOHAMMED KASSIM (PARTY-IN-PERSON)
RESPONDENTS/PETITIONERS:
1 R PREMCHAND
'SETHU", POOJAPPURA
THIRUVANANTHAPURAM
PRESENTLY AT FLAT NO. 10A,
SKYLINE MELODY JAGATHY,
THIRUVANANTHAPURAM, PIN - 695014
2 MOHANACHAND B. NAIR
9E, PALACE COURT NEAR NARMADA
THIRUVANANTHAPURAM, PIN - 695003
BY ADVS.
R.T.PRADEEP
NAIR AJAY KRISHNAN(N-122)
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
04.06.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
O.P.(C) No. 709 of 2024
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JUDGMENT
I have heard the petitioner who appeared in person and
Sri.R.T.Pradeep, the learned counsel appearing for the respondents.
2. The petitioner is the son and one of the legal heirs of the 1 st
defendant in O.S.No. 85/1971 on the files of Principal Sub Court,
Thiruvananthapuram (for short, 'the trial court'). The suit was one for
partition. The trial court after trial passed a preliminary decree for partition.
The decree and judgment of the trial court was challenged before this court in
several appeals filed by different parties to the suit. In A.S.No.51/1973, the
petitioner's father was impleaded as respondent No.14. The father of the
petitioner died during the pendency of the appeal and his legal heirs including
the petitioner were impleaded as additional respondent Nos. 51 to 58.
Additional respondent No. 58 is the petitioner herein. The parties to all the
appeals had settled all disputes and as per the compromise entered into
between the parties, it was decided to withdraw the appeals as well as the suit.
Accordingly, Ext.P3 judgment was passed by this Court, whereby all the
appeals as well as the suit O.S.No. 85/1971 were withdrawn without
prejudice to the right of the parties in A.S.No.51/1973 to effect partition of
share of property allotted to the 11th defendant's group under Ext.A4 in
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separate proceedings. Thereafter, the son of the 1st defendant in
O.S.No.85/1971, who is the brother of the present petitioner, filed
I.A.No.4645/2014 before the trial court to direct the receiver who was
appointed in the suit to take possession of the property comprised in
Kadakampally Village and to evict the encroaches therein. The said
application was dismissed as per Ext.P7 order along with three other
interlocutory applications holding that the receiver appointed did not take in
possession of any of the properties situated in Kadakampally Village. Being
aggrieved by certain observations made by the trial court in paragraphs 99
and 100 of Ext.P7 order, the petitioner has approached this Court.
3. The petitioner who appeared in person submitted before me that,
even though compromise petition was filed in the appellate court, in fact, the
suit was not withdrawn. According to the petitioner, a compromise petition
should have been filed before the trial court and the trial court should pass an
order withdrawing the suit. He submits that the suit is still alive and hence the
observations in paragraphs 99 and 100 of the impugned order that the suit and
appeals were already withdrawn is not correct. The prayer in this original
petition is to delete the said observation. I cannot subscribe to the said
submission of the petitioner. The result portion of Ext.P7 order would show
that all the parties in appeals entered into a compromise and it was agreed to
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withdraw the suit as well as appeals and on the basis of the compromise, the
appeals as well as the suit were withdrawn. The appellate court has every
power to allow the parties to withdraw the suit itself on the basis of
compromise under Order 23 Rule 1 of the CPC. Since the suit was already
withdrawn, the prayer sought for in this original petition cannot be granted.
The original petition fails and accordingly, it is dismissed.
Sd/-
DR. KAUSER EDAPPAGATH
JUDGE
APA
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APPENDIX OF OP(C) 709/2024
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE JUDGMENT & DECREE IN O.S 4/1965
BY 11 ADDL. DISTRCT COURT, THIRUVANANTHAPURAM
DATED 28/ 11 / 1968
EXHIBIT P2 TRUE COPY OF THE PRELIMINARY JUDGMENT & DECREE
BY PRINCIPAL SUB COURT THIRUVANANTHAPURAM IN O.S
85/1971 DATED 31/07/1972
EXHIBIT P3 TRUE COPY OF JUDGMENT & DECREE IN AS 51/1973 AND
CONNECTED APPEAL SUITS DELIVERED BY THIS
HONOURABLE COURT DATED 20/02/1980.
EXHIBIT P4 TRUE COPY OF THE IA 4645/2014 IN O.S 85/1971
BEFORE PRINCIPAL SUB COURT, THIRUVANANTHAPURAM
DATED 16/12/2014
EXHIBIT P5 TRUE COPY OF L.A 815/2019 IN O.S 85/1971 BEFORE
4TH ADDL DISTRICT COURT, THIRUVANANTHAPURAM
DATED 14/03/2019
EXHIBIT P6 TRUE COPY OF THE I.A 4/2021 IN I.A 815/2019 IN
I.A 4645/2014 IN O.S 85/1971 SUBMITTED BEFORE
4'H ADDL. DISTRICT COURT, THIRUVANANTHAPURAM
DATED 12/07/2021
EXHIBIT P7 TRUE COPY OF THE COMMON ORDER IN I.A 4645/2014,
I.A 815/2019, IA 4/2021 DELIVERED BY 4TH ADDL.
DISTRICT COURT, THIRUVANANTHAPURAM DATED 20/
EXHIBIT P8 POWER OF ATTORNEY EXECUTED ON 20/12/2023
