Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH MONDAY, THE 2ND DAY OF SEPTEMBER 2013/11TH BHADRA, 1935 FAO.No. 372 of 2011 ( ) ------------------------ ORDER
/JUDGMENT
IN AS 25/2008 of SUB COURT, PALA DATED 19-02-2011 ORDER
/JUDGMENT
IN OS 87/2002 of MUNSIFF MAGISTRATE, ERATTUPETTA DATED 30.11.2007 APPELLANT/1st RESPONDENT/1st RESPONDENT: ------------------------------------- JERSON AGED 46, S/O.ANTONY, KADAPLAKKAL HOUSE MEENACHIL KARA, MEENACHIL VILLAGE, MEENACHIL TALUK PIN-686631. BY ADVS.SRI.K.K.CHANDRAN PILLAI (SR.) SRI.K.S.MANU (PUNUKKONNOOR) RESPONDENTS/APPELLANT AND RESPONDENTS 2 AND 3/PLAINTIFFS & 2ND DEFENDANT: ---------------------------- 1. SANJAY MITHRA S/O.NIRADU BARAN MITHRA, SOCIAL WORKER RESIDING AT P-64, KALINDI HOUSING ESTATE P.O. LAKE TOWN, WEST BENGAL, KOLKATTA PIN-700089.
2. NAIGIL, S/O.THOMAS, NEDIYAKALAYIL, VAGMON KARA TEEKOY VILLAGE, TEEKOY P.O., PIN-686580.
3. SUMITHRA MITHRA, W/O.SANJAY MITHRA, RESIDING AT P-64 KALINDI HOUSING ESTATE P.O., LAKE TOWN, WEST BANGAL KOLKATTA, PIN-700089. R1 AND 3 BY ADV. SRI.SHAJI P.CHALY R1 AND 3 BY ADV. SRI.R.SANJITH THIS FIRST APPEAL FROM ORDER
S HAVING COME UP FOR ADMISSION ON 02-09-2013, ALONG WITH FAO. 373/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J.
========================= F.A.O.Nos.372 and 373 of 2011 ============================ Dated this the 02nd day of September, 2013
JUDGMENT
Admit.
2. These appeals arise from the common judgment dated 19.02.2011 in A.S.Nos.24 and 25 of 2008 of the Sub Court, Pala setting aside the common judgment and decree in O.S.Nos.87 of 2002 and 132 of 2003 the counter claim therein of the Munsiff's Court, Erattupetta and remitting the suits and the counter claim to the learned Munsiff for fresh decision.
3. The following substantial questions of law are framed for a decision: (i) Whether the lower appellate court was legally correct in disposing of the appeals without reference to the cross objection filed by the respondents in A.S.No.24 of 2008. (ii) Whether, without considering the cross objection, the lower appellate court could have interfered with the finding of the trial court as regards possession and identity of the property in O.S.No.132 of 2003? 4. The parties are referred as plaintiffs and defendants as in O.S.No.132 of 2003 in which the trial court has recorded evidence. F.A.O.Nos.372 and 373 o”
2. 5. Defendants 1 and 2 in O.S.No.132 of 2003 filed O.S.No.87 of 2002 for a decree for prohibitory injunction concerning 5 Acres described in the plaint schedule against one Jerson and Naigil. The plaintiffs in O.S.No.132 of 2003 claimed title and possession of the property as per sale deed executed by the defendants in O.S.No.87 of 2002 and claimed to be in possession of the said 5 Acres.
6. O.S.No.132 of 2003 concerns 3 Acres claimed to be forming part of the 5 Acres referred to in the plaint schedule in O.S.No.87 of 2002. O.S.No.132 of 2003 is filed by Johnson, George and Sherji Thomas against Sanjay Mitra, Sumitra Mitra and Ganeshan for a decree for prohibitory injunction against trespass into the said 3 Acres. The plaintiffs in that suit claimed to have purchased the property from Jerson and Naigil. Defendants 1 and 2 in O.S.No.132 of 2003 filed O.S.No.87 of 2002 concerning 5 Acres against the said Jerson and Naigil. There also, reliefs sought for is decree for prohibitory injunction as if the plaintiffs in O.S.No.87 of 2002 (defendants 1 and 2 in O.S.No.132 of 2003) are in possession and enjoyment of the entire 5 Acres (of which 3 Acres is said to be the property involved in O.S.No.132 of 2003). F.A.O.Nos.372 and 373 o”
3. 7. Defendants 1 and 2 in O.S.No.132 of 2003 (plaintiffs in O.S.No.87 of 2002) raised counter claim in O.S.No.132 of 2003 seeking declaration of the title, recovery of possession and injunction.
8. The trial court was of the view that parties were not able to prove identity of the properties involved in the suits and the counter claim and possession claimed by them. Consequently the trial court dismissed the suits and the counter claim in O.S.No.132 of 2003.
9. Defendants 1 and 2 in O.S.No.132 of 2003 challenged dismissal of the counter claim in A.S.No.24 of 2008 (learned counsel for the plaintiffs in O.S.No.132 of 2003 submits that those plaintiffs had filed a cross objection in A.S.No.24 of 2008 challenging dismissal of O.S.No.132 of 2003. But, neither was the cross objection numbered nor heard and disposed of by the lower appellate court). Plaintiffs in O.S.No.87 of 2002 challenged dismissal of O.S.No.87 of 2002 in A.S.No.25 of 2008.
10. The lower appellate court has disposed of A.S.Nos.24 and 25 of 2008 by a common judgment making certain observations (concerning possession claimed by the plaintiffs in O.S.No.132 of 2003) in paragraph 15 of the common judgment but, ultimately setting aside judgment and decree in O.S.Nos.87 F.A.O.Nos.372 and 373 o”
4. of 2002, 132 of 2003, the counter claim and remitting the suits and the counter claim to the trial court for fresh decision.
11. Sri.Jayasanker, the learned counsel for the appellants in F.A.O.No.373 of 2011 (arising from the judgment in A.S.No.24 of 2008) contends that the observations in paragraph 15 of the common judgment of the lower appellate court and the order of remand are made without considering the cross objection the appellants in F.A.O.No.373 of 2011 (respondents in A.S.No.24 of 2008 and plaintiffs in O.S.No.132 of 2003) have preferred in the lower appellate court against dismissal of O.S.No.132 of 2003.
12. According to the learned counsel the lower appellate court could not have made any such observation or entered any such finding without considering the said cross objection.
13. Learned Senior Advocate for the appellant in F.A.O.No.372 of 2011 (first respondent in A.S.No.25 of 2008 and the first defendant in O.S.No.87 of 2002) contends that the cross objection preferred by the appellants in F.A.O.No.373 of 2011 was not maintainable since O.S.No.132 of 2003 was dismissed as a whole against the appellants in F.A.O.No.373 of 2011 (plaintiffs in O.S.No.132 of 2003). According to the learned Senior Advocate, when the judgment and decree of the trial court dismissed O.S.No.132 of 2003 wholly against the appellants in F.A.O.Nos.372 and 373 o”
5. F.A.O.No.373 of 2011, question of preferring a cross objection under Rule 22 of Order XLI of the Code of Civil Procedure (for short, "the Code") does not arise.
14. Sri.S.P Chaly, learned counsel for the respondents 1 and 3 in F.A.No.372 of 2011 and the respondents 1 and 2 in F.A.O.No.373 of 2011 (defendants 1 and 2 in O.S.No.132 of 2003 and the counter claim-plaintiffs in that suit and the plaintiffs in O.S.No.87 of 2002) has contended that in so far as the cross objection filed by the appellants in F.A.O.No.373 of 2011 against dismissal of O.S.No.132 of 2003 is not maintainable for the aforesaid reason, dismissal of O.S.No.132 of 2003 has become final and the lower appellate court could not have interfered with that dismissal. According to the learned counsel, what could be remanded therefore was only the counter claim in O.S.No.132 of 2003 and O.S.No.87 of 2002.
15. I find from paragraph 15 of the common judgment of the lower appellate court that the said Court has proceeded to consider claim made by the appellants in F.A.O.No.373 of 2011 (plaintiffs in O.S.No.132 of 2003) and has observed that though the trial court had framed an issue regarding title in O.S.No.132 of 2003, the appellants in F.A.O.No.373 of 2011 (plaintiffs in O.S.No.132 of 2003) were not given any direction for payment of F.A.O.Nos.372 and 373 o”
6. court fee as required under Sec.27(a)(ii) of the Kerala Court Fees and Suit Valuation Act (for short, "the Act") and without doing that, the trial court has made observations regarding the title claimed by them. The lower appellate court also observed that though the issues raised in O.S.No.132 of 2003 based on the plaint averments were answered against the appellants in F.A.O.No.373 of 2011 (plaintiffs in O.S.No.132 of 2003), they have not preferred any appeal or cross objection against dismissal of O.S.No.132 of 2003. From the operative portion of the judgment of the lower appellate court it would appear that both the appeals are allowed and finding of the trial court in both the suits (including O.S.No.132 of 2003) are set aside and the matter remitted to the trial court for fresh disposal.
16. I am inclined to think that judgment of the lower appellate court suffers from a legal infirmity in that the operative portion of the judgment contradicts observations made by the learned Sub Judge in paragraph 15 of the judgment. I must also notice that even the observations in paragraph 15 of the common judgment are made without taking into account the cross objection preferred by the appellants in F.A.O.No.373 of 2011 (respondents in A.S.No.24 of 2008). Therefore, judgment of the lower appellate court cannot be sustained. F.A.O.Nos.372 and 373 o”
7. 17. Though learned counsel on both sides raised contentions as to the maintainability and sustainability of the cross objection preferred by the appellants in F.A.O.No.373 of 2011 (as respondents in A.S.No.24 of 2008), it is not necessary or proper for me to go into that question since that cross objection was not considered by the lower appellate court. The lower appellate court has to consider the cross objection filed by the appellants in F.A.O.No.373 of 2011 (as the respondents in A.S.No.24 of 2008) and take appropriate decision.
18. Learned Senior Advocate for the appellant in F.A.O.No.372 of 2011 has a contention that neither the appellant nor the second respondent in A.S.No.25 of 2008 were given notice of that appeal. This is however contested by the learned counsel for other parties. That also is a matter which the lower appellate court has to decide in view of the decision I have already taken in the matter. In case notice is not issued to the second respondent in A.S.No.25 of 2008, notice has to be issued to that respondent.
19. I am disposing of these appeals without notice to the second defendant in O.S.No.87 of 2002 (second respondent in A.S.No.25 of 2008) and the third defendant in O.S.No.132 of 2003. The reason is that so far as the second defendant in F.A.O.Nos.372 and 373 o”
8. O.S.No.87 of 2002 (second respondent in A.S.No.25 of 2008) is concerned he, along with the appellant in F.A.O.No.372 of 2011 (first respondent in A.S.No.25 of 2008 and the first defendant in O.S.No.87 of 2002) has filed a joint written statement taking up common contentions and the interest being common, that is represented and protected by the appellant in F.A.O.No.372 of 2011 (first respondent in A.S.No.25 of 2008).
20. So far as the third defendant in O.S.No.132 of 2003 (5th respondent in A.S.No.24 of 2008)is concerned, it is submitted by learned counsel on both sides that he was impleaded in O.S.No.132 of 2003 and the counter claim therein only in his capacity as power of attorney holder of the defendants 1 and 2 in that suit (counter claim plaintiffs in O.S.No.132 of 2003) looking after the property of defendants 1 and 2 in O.S.No.132 of 2003 (counter claim plaintiffs). Since defendants 1 and 2 in O.S.No.132 of 2003 (counter claim plaintiffs in O.S.No.132 of 2003) are contesting the suit on their own, it is not necessary for me to issue notice on these appeals to the third defendant in O.S.No.132 of 2003 (5th respondent in A.S.No.24 of 2008), he remained absent in the appeal and in view of the decision I have taken in these appeals. F.A.O.Nos.372 and 373 o”
9. 21. The result of my above discussion is that the common judgment of learned Sub Judge, Pala in A.S.Nos.24 and 25 of 2008 is liable to be set aside and the matter remitted to that court for fresh decision.
22. The substantial questions of law framed are answered as above. Resultantly, these appeals are allowed by way of remand as under: I F.A.O.No.372 of 2011 (a) Common judgment of learned Sub Judge, Pala to the extent it concerns A.S.No.25 of 2008 is set aside. (b) A.S.No.25 of 2008 is remitted to the learned Sub Judge for fresh decision. II F.A.O.No.373 of 2011 (a) Common judgment of learned Sub Judge, Pala to the extent it concerns A.S.No.24 of 2008 is set aside. (b) A.S.No.24 of 2008 is remitted to the learned Sub Judge for fresh decision. III. Learned Sub Judge is directed to decide on the maintainability and sustainability of the cross objection filed by the respondents 1 to 3 in A.S.No.24 of 2008 (plaintiffs in O.S.No.132 of 2003). F.A.O.Nos.372 and 373 o”
10. IV. Learned Sub Judge shall issue notice to the second respondent in A.S.No.25 of 2008 (second defendant in O.S.No.87 of 2002) and 5th respondent in A.S.No.24 of 2008 (third defendant in O.S.No.132 of 2003). V. Parties who are represented by counsel in these appeals shall appear in the Sub Court, Pala on 07.10.2013. All pending interlocutory applications will stand dismissed. Sd/- THOMAS P.JOSEPH, JUDGE Sbna True Copy P.A to Judge