THAYOOB SAIT Vs. AYYAPPAN
HIGH COURT OF KERALA
Click here to view full judgement.
(1.)The facts necessary for the decision of these Civil Revision .Petitions may be briefly stated:
(2.)The petitioner sued in O. S. No. 337 of 1957 for a declaration that he was a lessee of the plaint property or in the alternative for a declaration of such rights as the court may find and for an injunction to restrain the defendant, the owner of the land, from entering into possession. The plaintiff was appointed a receiver of the property by the Munsiff's Court. The suit was finally dismissed by this Court in Second Appeal. Thereafter, the plaintiff filed another suit as O. S. No. 519 of 1961 for declaration of his rights to be in possession and for an injunction restraining the defendant from interfering with his cultivation. A temporary injunction in these terms was obtained ex parte. In the meanwhile the defendant had applied in O. S. No. 337 of 1957 for recovery of possession from the plaintiff who was in possession as receiver, but the application was dismissed in view of the temporary injunction. He repeated the application after the receiver was discharged but it was again dismissed by order, dated 14th June 1962 which has given rise to C. E. P. No. 731 of 1962. The defendant entered appearance in O. S. No. 519 of 1961 and objected to the temporary injunction. It appears that the court considered the question of safeguarding the crops in the land which wore almost ready for harvesting and directed the plaintiff to furnish security for the same. The value of the crops was deposited by the plaintiff and the court passed an order on 7th October 1961 allowing the injunction. The defendant applied on 9th March 1962 for reviewing the order. A separate application to condone the delay in applying for review was filed on 26th March 1962. The court below dismissed the latter petition on the ground that it was not filed along with the application for review. The petition for review was dismissed on the ground that it was filed out of time. The defendant has preferred CRP. No. 531 of 1962 against the order dismissing the petition for review.
(3.)When these petitions came up for hearing, our learned brother, Raghavan, J., referred the petition to a Bench as he felt that the view taken in Raman Adiodi v. Raman 1961 KLT 874 which was relied on by the learned Munsiff, required reconsideration. The question referred is:
"Whether a party instituting any proceeding in court after expiry of the time allowed therefor should file the necessary application to condone the delay along with the proceeding itself or a subsequent application to condone the delay would also be proper."
Copyright © Regent Computronics Pvt.Ltd.