Kerala High Court
Mohammed Iqbal Shah vs Kunnoth Moidu on 25 September, 2014
Author: B.Kemal Pasha
Bench: B.Kemal Pasha
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE B.KEMAL PASHA
THURSDAY, THE 2ND DAY OF FEBRUARY 2017/13TH MAGHA, 1938
RP.No. 1058 of 2015 () IN CRP.388/2009
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CRP 388/2009 of HIGH COURT OF KERALA DATED 25-09-2014
REVIEW PETITIONER/1st RESPONDENT:
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MOHAMMED IQBAL SHAH,
DIRECTOR, M/S.AIR COSMOS TOURS AND
TRADE LINKS(P) LTD.,
AGED 34 YRS, S/O.K.A.IBRAHIM,
`MINARA', V.O.ROAD, VADAKARA.
BY ADV. SRI.C.M.MOHAMMED IQUABAL
RESPONDENTS/PETITIONER AND R2 AND R3:
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1. KUNNOTH MOIDU, DIRECTOR,
M/S.AIR COSMOS TOURS AND TRADE LINKS (P) LTD.,
AGED 42 YEARS, S/O.CHOKRU, `MAJILIS',
KUNINGAD DESOM, PURAMERI VILLAGE,
VATAKARA TALUK, PIN-673 103,
NOW WORKING AT AL-ADWAH GROUP, BAHRAIN.
2. N.SUNIL KUMAR, DIRECTOR,
M/S.AIR COSMOS TOURS AND TRADE LINKS (P) LTD.,
AGED 37 YRS, S/O.NARAYANAN NAIR,
`PARVATHI SADAN', NUT STREET,
VADAKARA, PIN-673 103.
3. MOHAMMED VANIMAL, DIRECTOR,
M/S.AIR COSMOS TOURS AND TRADE LINKS (P) LTD.,
38 YRS, S/O.ABDULLA, KUTTIKATTIL HOUSE,
VANIMEL, POST KALLACHI, PIN-673506,
VADAKARA TALUK, NOW WORKING AT
21 CENTURY BOOK SHOP, P.B.NO.55893,
BEHIND BUS STOP, RASHIDIYA, DUMAI.
R1 BY ADVS. SRI.B.KRISHNAN
SRI.R.PARTHASARATHY
R2 & R3 BY ADV. SRI.ANILKUMAR V. (VAZHARAMBIL)
THIS REVIEW PETITION HAVING BEEN FINALLY HEARD
ON 02-02-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
DSV/8/2/17
[CR]
B. KEMAL PASHA, J.
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Review Petition No. 1058 of 2015
in C.R.P. No. 388 of 2009
...............................................................
Dated this the 2nd day of February, 2017
O R D E R
Heard.
2. The first respondent in C.R.P.No.388/2009 is the review petitioner herein. He has sought for the review of the order passed by this Court mainly on three grounds. The first ground is that the review petitioner was not served with notice in the revision. The second ground is that Order VIIIA inserted by the Kerala High Court is not in the Code of Civil Procedure, after the 2002 amendment of the Code of Civil R.P. 1058 of 2015 in CRP 388 of 2009 -: 2 :- Procedure, and therefore, the proceedings before the court below and that before this Court are not maintainable. The third ground is that this Court had directed the court below to draw a decree in tune with the order passed by this Court and no opportunity was given to the review petitioner to get the amount due from him, quantified.
3. The petitioner in the CRP has filed a counter affidavit stating that the records of this Court clearly show that notice was served on the review petitioner. It seems that notice has been served as per the provisions of the Code of Civil Procedure, 1908 and as per the High Court Rules and therefore, the said ground of want of notice raised by the review petitioner is not legally sustainable.
4. Regarding the argument forwarded by the learned counsel for the review petitioner that after the amendment of the CPC in the year 2002, the provisions under Order VIIIA, which was inserted by the Kerala High Court through the amendment of the CPC, is no longer R.P. 1058 of 2015 in CRP 388 of 2009 -: 3 :- available in the CPC. The maintainability of the said provisions were raised before the court below also and the said question was considered by the court below, and the said contention was negatived by the court below.
5. The learned counsel for the petitioner in the revision petition has invited the attention of this Court to the decision in Union of India v. Anchery Lonappan and Kakoo and another[AIR 1980 Kerala 180] wherein the very same question was considered. The question that arose for consideration in the decision noted supra was whether Order VIII A could be considered as one still in the CPC after the 1976 amendment of the CPC. It was held therein as follows:
"Order VIIIA was inserted in the Code by the Kerala High Court by virtue of powers vested in it under Sections 122 and 128 of the Code. As per Section 157 an amendment like the one inserting Order VIIIA will continue to have the R.P. 1058 of 2015 in CRP 388 of 2009 -: 4 :- same force and effect as any other provisions of the Code so long as the same is not inconsistent with other provisions. Section 97 of the Code of Civil Procedure (Amendment) Act 1976 also saves it, as it is not in any way inconsistent with the amended provisions. Hence, Kerala Amendment inserting O. VIIIA in the Code for "Third Party Procedure' by notification published in Kerala Gazette dated 9-6- 1959 in unaffected by the Amendment Act of 1976(which came into force on 1- 2-1977). As per O. VIIIA Rule 1, the court is bound to issue notice to third party when an interim application has been made thereunder to implead him though it is not bound to implead a party under it."
6. The decision noted supra is squarely applicable to the facts of the present case also. There is no case that the provisions contained in Order VIII A inserted by the R.P. 1058 of 2015 in CRP 388 of 2009 -: 5 :- Kerala High Court through the amendment of the CPC are inconsistent with any of the other provisions contained in the CPC after the amendment. Had there been any inconsistency, the said ground could have been maintained. When no such inconsistencies are there, it has to be considered that the said provisions inserted by the Kerala High Court through the amendment of the CPC still continues even after the 2002 amendment.
7. Regarding the next ground that the revision petitioner did not get an opportunity to get the amount quantified through evidence, it has to be noted that the revision petitioner had never contested the matter before the court below also. Further, the amount is quantified by this Court as born out from the documents. Any further evidence is not required to quantify the amount. The liability had arisen from a contractual obligation. When it was born out from records, there was no occasion to consider any oral evidence in the matter. Matters being so, this R.P. is devoid R.P. 1058 of 2015 in CRP 388 of 2009 -: 6 :- of merits and it is only to be dismissed, and I do so.
In the result, this review petition is dismissed.
Sd/- B. KEMAL PASHA, JUDGE.
ul/-
// true copy // P.S. to Judge.