Kerala High Court
K.P.Varghese vs K.P.Varghese on 21 November, 2011
Author: P. Bhavadasan
Bench: P.Bhavadasan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.BHAVADASAN
WEDNESDAY, THE 4TH DAY OF APRIL 2012/15TH CHAITHRA 1934
RP.No. 187 of 2012 () IN FAO/44/2011
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AGAINST THE JUDGMENT IN FAO.NO.44/2011 DATED 21-11-2011
REVIEW PETITIONER(S)/RESPONDENTS:
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1. K.P.VARGHESE
S/O.PATHROSE, KOTTARATHUMALIL HOUSEKOKKAPPILLY KARA
THIKRUVANMIYOOR VILLAGE, KUNNATHUNADU TALUK
PIN-682 308.
2. M.Y.SAJU,
S/O.YOHANNAN, ADVOCATE, MALLECKAL HOUSE
KOKKAPPLY KARA, THIRUVANIYOOR VILLAGE
KUNNATHUNADU TALUK, MANAGER, ST.JOHN'S HIGH SCHOOL
KANNIYATTUNIRAPPU, PIN-682 308.
3. JOY
S/O.KOCHUKUNJ, CHELACHUVATTIL, THIRUVANIYOOR KARA
THIRUVANIYOOR VILLAGE, PIN-682 308.
4. E.V.JAMES, S/O.VARGHESE
EDAPPALIMATTATHIL, THIRUVANIYOOR KARA
THIRUVANIYOOR VILLAGE, KUNNATHUNADU TALUK
PIN-682 308.
5. YACOB
S/O.KUNJAPPAN, KEELATH, THIRUVANIYOOR KARA
THIRUVANIYOOR VILLAGE, KUNNATHUNADU TALUK
PIN-682308.
6. P.V.KURIACHAN
S/O.VARKEY, PUTHENVEETTIL, THIRUVANIYOOR KARA
THIRUVANIYOOR VILALGE, KUNNATHUNADU TALUK
PIN-682 308.
7. GEEVARGHESE
S/O.YACOB, KOKKATTU, KUZHIYARA KARA
THIRUVANIYOOR VILLAGE, KUNNATHUNADU TALUK
PIN-682 308.
8. N.U.JOSEPH
S/O.ULAHANNAN, NJATTUTHOTTIYIL, KUZHIYARA KARA
THIRUVANIYOOR VILLAGE, PIN-682 308.
9. PAUL VARGHESE
S/O.VARGHESE, VATTAPPILLIL, KOKKAPPILLY KARA
THIRUVANIYOOR VILLAGE, KUNNATHUNADU TALUK
PIN-682 308.
BY ADVS.SRI.SANTHEEP ANKARATH
SRI.SUMODH MADHAVAN NAIR
RESPONDENT(S)/APPELLANTS 1 & 2& RESPONDENTS 1 TO 4, 7, 11, 13 TO 17 &
21:
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1. O.V.JOHNY
S/O.VARGHESE, OOMELLIL HOUSE, KOKKAPPILLY KARA
THIRUVANIYOOR VILLAGE, KUNNATHUNADU TALUK
PIN-682 308.
2. N.V.GEORGE, S/O.VARGHESE
NADEVELAPARAMBIL HOUSE, KOKKAPPILLY KARA
THIRUVANIYOOR VILLAGE, KUNNATHUNADU TALUK
PIN-682 308.
3. ST.JOHN'S ORTHODOX SYRIAN CHURCH
KANNIYATTUNIRAPPU, KUZHIYARA KARA
THIRUVANIYOOR VILLAGE, REPRESENTED BY ITS VICAR
PIN-682 305.
4. M.V.GEORGE
S/O.VARKEY, MUREEKKAL HOUSE, THALAKODE KARA
KANAYANNUR VILLAGE, KANAYANNUR TALUK, PIN-682 305.
5. P.M.JOY
S/O.MANI, PADINJAREKUDIYIL HOUSE, KOKKAPPILLY KARA
THIRUVANIYOOR VILLAGE, KUNNATHUNADU TALUK
PIN-682 308.
6. FR.JOHN MOOLAMATTOM
S/O.FR.KURIAKOSE, VICAR
ST.JOHN'S ORTHODOX SYRIAN CHURCH, KANIYATTUNIRAPPU
KUZHIYARA KARA, THIRUVANIYOOR VILLAGE, PIN-682 308.
7. REJI.N.K.
NADUMOLAYIL HOUSE, KUZHIYARA KARA
THIRUVANIYOOR VILLAGE, KUNNATHUNADU TALUK
SECRETARY, ST.JOHN'S HOSPITAL, KANIYATTUNIRAPPU
PIN-682 308.
8. BENNY PAUL
S/O.PAILY, PATTULLIL, THIRUVANIYOOR KARA
THIRUVANIYOOR VILLAGE, KUNNATHUNADU TALUK
PIN-682 308.
9. K.T.PAULOSE,
S/O.THOMMAN, KOLLAMKULATHIL, KIDANGYAM KARA
KANAYANNUR VILLAGE, KANAYANNUR TALUK, PIN-682 308.
10. C.A.THANKACHAN
S/O.ABRHAM, CHIRAPPATTU, KIDANYAMKARA
KANAYANNUR VILLAGE, KANAYANNUR TLAUK, PIN-682 308.
11. BABU
S/O.VARGHESE, CHIRAPPATTU KIDANGAYAMKARA
KANAYANNUR VILLAGE, KANAYANNUR TALUK, PIN-682 308.
12. V.M.PAULOSE,
S/O.MATHEW, VAZHAKALAYIL, KANAYANNUR VILLAGE
KANAYANNUR TALUK, PIN-682 308.
13. ELIAS
S/O.PAPPY.L., PARAKULANGARA, KIDANGAYAM
KANAYANNUR VILLAGE, KANAYANNUR TALUK, PIN-682 308.
14. T.P.WILSON
S/O.PAILY, THACHETH, KOKKAPPILLY KARA
THIRUVANIYOOR VILLAGE, KUNNATHUYNADU TALUK
PIN-682 308.
BY ADV. S. SREEKUMAR (SR.)
THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 04-04-2012,
ALONG WITH RP. 188/2012, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
P. BHAVADASAN, J.
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C.M.Appln. 207 of 2012 & R.P.187
of 2012 in F.A.O. No. 44 of 2011 &
C.M.Appln.208 of 2012 & R.P. 188
of 2012 in F.A.O. 43 of 2011.
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Dated this the 4th day of April, 2012.
ORDER
These two petitions are filed under Section 5 of the Limitation Act seeking to condone the delay in filing the review petitions.
2. The affidavit is sworn to by the same person in respect of both the petitions. The sixth petitioner in the accompanying review petitions pointed out that he is conversant with the facts. The review petitions were filed seeking review of the judgments in F.A.O. Nos.43 and 44 of 2011 which were disposed of by this court by a common judgment dated 21.11.2011. The review petitioners applied for certified copy of the judgment on 22.11.2011 and they received the same on 28.11.2011. It is pointed out that when the certified copy of the judgment was taken to the counsel R.P.187 & 188/2012. 2 appearing in the trial court, he pointed out that there are certain apparent errors in the judgment and the petitioners were directed to get the judgment reviewed, otherwise it would be detrimental to the entire litigation which are pending between the parties. It is pointed out that the error was noticed only when the counsel appearing for the petitioners went through the judgment while preparing for the suits pending before the trial court which were posted on 10.2.2012. Therefore, the delay has occurred in filing the review petitions. It is pointed out that there is no wilful laches or negligence on the part of the petitioners in not filing the review petitions within time. It is also pointed out that unless the delay is condoned, and the review petitions are decided on merits, petitioners will be put to irreparable loss and injury.
3. The petitions are opposed by the sixth respondent who filed counter affidavits. It is pointed out that no justifiable reasons are given for condoning the delay and the reasons given are not sufficient to condone the R.P.187 & 188/2012. 3 delay. Moreover, it is pointed out that there is no merit in the review petitions since this court had heard the matter elaborately and it was after considering the rival contentions that the judgment was rendered. In the counter affidavits, it is also pointed out that various decisions of this court have also been referred to and the observations made by this court while disposing of the F.A.Os. are correct.
4. On the very face of it, the reasons given for the delay are unacceptable. Copy of the judgment was obtained on 28.11.2011. The reason given for the delay was that the counsel for the petitioners before the trial court noticed the errors only when he was preparing for the suits which were listed before the trial court. That obviously cannot be a reason to condone the delay.
5. Apart from the above fact, this court, in order to ascertain whether any series injury has been caused to the petitioners, went into the merits of the matter. It is pointed out that the review petitioners are aggrieved by the R.P.187 & 188/2012. 4 observation in paragraph 3 of the judgment of this court dated 21.11.2011. In the said paragraph, it was observed as follows:
"It is not in dispute that it has been declared that the Church in question is governed by 1934 Constitution."
That observation was made after hearing the counsel and after verifying the records and it was not an inadvertent observation.
6. Apart from the above fact, it also needs to be noticed that the review petitions have been filed by a different counsel and not by the counsel who appeared in the F.A.Os. It is unfortunate that there is a growing practise in this court of a different counsel filing the review petition than the counsel who earlier appeared in the case. Obviously the earlier counsel alone knew what had actually transpired in this court while the matter was argued on merits. The new counsel who files the R.P. is certainly not aware of what was argued and debated before this court. This unhealthy practice should be discouraged and it is R.P.187 & 188/2012. 5 time that the court has to make it clear that such R.P. will not be entertained at all.
7. On this ground also, the review petitions are to be rejected.
8. Then the only thing that remains is to ascertain whether any purpose will be served by condoning the delay. Since it is found that the review petitions are without merits, there is no point in condoning the delay. The delay condonation petitions are only to be dismissed.
For the reasons stated above, the delay condonation petitions are dismissed. Consequently, the review petitions are also dismissed.
Judicial discretion prevents me from imposing heavy costs.
P. BHAVADASAN, JUDGE sb.