P PARAMESWARAN PILLAI Vs. PUSHPAN

JUDGEMENT

(1.) PETITIONER and respondents were locked up in two suits - O.S.Nos.651 of 1998 and 49 of 1999, the former filed by petitioner for declaration of title, possession and injunction and the latter filed by respondents for a decree for prohibitory injunction. Cases were tried and disposed of jointly. O.S.No.651 of 1998 was dismissed against which petitioner filed R.F.A.No.72 of 2004. O.S.No.49 of 1999 was decreed against which petitioner filed R.F.A.No.69 of 2004. Both the appeals were pending before learned Sub Judge, Kottarakkara. On 17.09.2008 counsel for petitioner/appellant submitted that the appeals are not pressed and accordingly the same were dismissed as not pressed. After 275 days of the time prescribed for readmission or review of the matter as the case may be, petitioner filed I.A.Nos.1146 of 2009 and 1152 of 2009 in R.F.A.No.72 of 2004 and I.A.Nos.1148 of 2009 and 1147 of 2009 in R.F.A.No.69 of 2004 to condone the delay and readmit the appeals. In the affidavit in support of the applications to condone the delay petitioner stated that when the appeals were pending, there was a talk of settlement between petitioner and respondents the latter introducing one Unnikrishnan who agreed to purchase the disputed property and there was an agreement for sale executed between petitioner and the said Unnikrishnan who gave some amount by way of advance on 18.03.2008. Respondent No.1 is a witness in the said agreement. It is in the light of that compromise involving respondents also that petitioner got the appeals dismissed as not pressed on 17.09.2008. Later petitioner learnt that he was being cheated by respondents and the said Unnikrishnan and thereon he filed applications above stated for readmission of the appeals. Applications were opposed by the respondents. Learned Sub Judge observed that if there was any compromise (agreement) as claimed by petitioner his remedy was not to seek readmission of appeals but to enforce that compromise (agreement) by filing a separate suit. Learned Sub Judge also observed that there is no question of readmission of the appeals since the appeals were dismissed as not pressed and Order XLI Rule 19 of the Code of Civil Procedure (for short, "the Code") would apply only in cases where the appeals were dismissed for default. Observing so, applications to condone the delay were dismissed and consequently the applications to readmit the appeals also were dismissed. The impugned orders are under challenge in these petitions. Learned counsel for petitioner contended that the view taken by learned Sub Judge that if there was an agreement as claimed by petitioner and if that agreement is not performed remedy is not readmission of appeals but separate suits for specific performance of the agreement is not acceptable. If the appeals could not be readmitted for the reason that the same were not dismissed for default, the applications could have been treated as one for review and dealt with accordingly. Learned counsel for respondents contended that there is no reason to interfere with the impugned orders. According to the learned counsel remedy for non-performance of agreement between the petitioner and Unnikrishnan is not by way of readmission of the appeals.

(2.) SO far as the objection regarding maintainability of the application under Order XLI Rule 19 of the Code is concerned, true, Rule 19 of Order XLI of the Code was not applicable since the appeals were dismissed as not pressed. But even if the applications were labelled under Order XLI Rule 19 of the Code and styled as one for readmission of the appeals nothing prevented the court from treating the same as for review of order dated 17.09.2008 dismissing the appeals as not pressed. May be, if the applications are treated as one for review petitioner is liable to pay half the court fee payable on the appeals. That is a matter which the appellate court has to decide. Hence dismissal of applications for the reason that no question of readmission arose cannot be sustained.