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2006 DIGILAW 658 (KER)

Kunnath Chellappan Nair v. Venkitadari

2006-10-05

V.RAMKUMAR

body2006
Judgment :- This is a petition under O. 47 R. 1 C.P.C. and Art. 226 of the Constitution of India seeking a review of the judgment dated 14-6-2006 in S.A. 174/1977 rendered by Hon’ble Justice R. Bhaskaran. The review petitioner was the plaintiff in O.S. No. 118/1970 on the file of the Musiff’s Court Palakkad. 2. I heard Advocate Smt. V.P. Seemanthini, the learned counsel appearing for the review petitioner and Adv. Sri. S.V. Balakrishna Iyer, the learned counsel appearing for the contesting respondents. 3. The learned counsel appearing for the plaintiff/review petitioner made the following submissions in support of the review:- At the end of paragraph 2 of the impugned judgment of this Court there is wrong statement that with regard to plaint schedule No. II the review petitioner has prayed for a declaration of his possession. As a matter of fact, consequent on the defendants trespassing into plaint schedule II pending suit, the plaint was amended incorporating a prayer as ‘AAAA’ seeking recovery of possession of plaint schedule II. Again towards the end of paragraph 5 of the judgment of this Court, the learned judge has committed the same mistake regarding the plaint schedule II. The further observation in paragraph 3 (page 3) of the judgment that during the earlier occasion a learned single judge, as per Annexure A2 judgment dated 9-12-1997, had allowed S.A. 174/90 in part, is also not correct. As a matter of fact, a perusal of paragraphs 8 and 10 of Annexure A2 judgment dated 9-12-1997 will go to show that the learned single judge who disposed of the Second Appeal during the first occasion had declared the title in respect of plaint schedule II although in that judgment also there is a wrong statement that there is no prayer for recovery of plaint schedule II. Again in paragraph 3 or the impugned judgment there is a wrong statement that two civil appeals were preferred before the Hon’ble Supreme Court against the common judgment dated 9-12-1997 in S.A. 174/90 and S.A. 531/90. As a matter of fact, there was only one appeal preferred against the judgment in S.A. 174/90 and the Hon’ble Supreme Court, as per Annexure A1 order dated 19-10-2005, has remanded S.A. 174/90 alone to this Court for fresh disposal. As a matter of fact, there was only one appeal preferred against the judgment in S.A. 174/90 and the Hon’ble Supreme Court, as per Annexure A1 order dated 19-10-2005, has remanded S.A. 174/90 alone to this Court for fresh disposal. There is a further statement erroneously made in paragraph 4 of the impugned judgment to the effect that when the Second Appeal, after remand, was taken up for hearing, both sides argued only with respect to the claim for recovery of possession of 2.46 acres in R.S. 69/1 in item No.1 of plaint schedule Item I. If this Court had consciously taken note of the fact that there was an amended prayer in the plaint for recovery of possession of plaint schedule II, the conclusion in the Second Appeal would have been different. On account of the wrong assumption made in the judgment the plaintiff/review petitioner is now precluded from filing a separate suit for recovery of possession. A reading of the remand order dated 19-10-2005 passed by the Hon’ble Supreme Court in Civil Appeal 976/98 will clearly show that the apex court found fault with this court for not formulating substantial questions of law as enjoined by Sec. 100 C.P.C. while disposing of S.A. 174/90 and accordingly set aside the judgment dated 9-12-1997 of the learned single judge of this court and remanded the S.A. for fresh disposal. Thus, all the contentions in the Second Appeal (S.A. 174/90) were left open to be argued before this Court. In fact, arguments were addressed before the learned Single Judge after remand with regard to both the plaint schedule items and the observation in paragraph 4 of the judgment to the effect that both sides argued only with regard to the claim for recovery of possession of 2.46 cents of plaint schedule item. I was really incorrect necessitating this review. 4. Eventhough the above argument, at first blush appears to be plausible and worthy of acceptance, I am afraid that the same does not, on a deeper probe, merit acceptance. 5. The suit instituted by the review petitioner, namely O.S. 118/1970 before the Munsiff’s Court, Palakkad was one for a perpetual injunction against the 2nd defendant in the suit in respect of the properties detailed in plaint schedule I and plaint schedule II. Plaint schedule I consisted of 10 items altogether having an extent of 12.86 acres. 5. The suit instituted by the review petitioner, namely O.S. 118/1970 before the Munsiff’s Court, Palakkad was one for a perpetual injunction against the 2nd defendant in the suit in respect of the properties detailed in plaint schedule I and plaint schedule II. Plaint schedule I consisted of 10 items altogether having an extent of 12.86 acres. Plaint schedule II consisted of six items, altogether having an extent of 12.82 acres. Pending suit, the review petitioner/plaintiff had got the plaint amended incorporating a prayer for recovery of 2.46 acres from Item 1 of plaint schedule No. I. Subsequent to the filing of the above suit the review petitioner had filed another suit for injunction as O.S.126/77 before the very same court for a perpetual injunction in respect of plaint schedule II. Alleging that, pending suit, the defendants trespassed upon the plaint schedule item II items, the review petitioner had amended the plaint incorporating a prayer for recovery of plaint schedule No. II. Both the aforementioned suits, after separate trial, were dismissed on 12-12-1985. Two appeals were preferred by the review petitioner as A.S. Nos. 42/1985 and 42/1986 before the Sub Court, Palakkad. Both the said appeals were heard together and disposed of by a common judgment dated 12-1-1987 whereby the appeals were remanded to the trial court. The remand orders were challenged by the defendants who filed C.M.As before this Court. On 25-3-1987 the C.M.As were allowed and the lower appellate court itself was directed to dispose of the appeals on merits. Thereafter, on 22-11-1989, both the appeals were dismissed on merits. Aggrieved by the appellate decrees the review petitioner preferred two Second Appeals as S.A. 174/90 and 531/90. S.A. 174/90 arose out of the earlier suit O.S. 118/1970 and S.A. 53/90 arose out of the subsequent suit, O.S.No. 126/1977. As per Annexure A2 common judgment dated 9-12-1997 this court dismissed S.A. 531/90 but partly allowed S.A. 174/90. Aggrieved by the appellate decrees the review petitioner preferred two Second Appeals as S.A. 174/90 and 531/90. S.A. 174/90 arose out of the earlier suit O.S. 118/1970 and S.A. 53/90 arose out of the subsequent suit, O.S.No. 126/1977. As per Annexure A2 common judgment dated 9-12-1997 this court dismissed S.A. 531/90 but partly allowed S.A. 174/90. This Court was inclined to declare the review petitioner’s title over the properties in plaint schedule I and II and granted a decree for recovery of possession of 2.46 acres out of Item 1 of plaint schedule I and granted a decree for perpetual injunction with regard to the remaining items in plaint schedule I. However, this court, wrongly observing that there was no recovery of possession sought in respect of plaint schedule II, declined to grant any relief thereof except the declaration of title of the plaintiff over the same. There is no dispute that although the dismissal of S.A. 531/90 arising from O.S. 126/77, has become final, it does not affect the review petitioner since the prayer in that suit was for a perpetual injunction in respect of the present plaint schedule II. Since the review petitioner/plaintiff had already got the plaint in O.S. 118/70 amended seeking recovery of possession of plaint schedule II, the review petitioner was evidently interested in getting the relief of recovery of possession and not injunction. But, as already observed, this court while disposing of S.A. 174/90 on 9-12-1997 did not grant the relief of injunction in respect of plaint schedule II on the premise that the said properties were in the possession of the 2nd defendant and erroneously observed that there was no relief of recovery claimed regarding plaint schedule II. The judgment dated 9-12-1997 in S.A.174/90 was not further appealed against by the review petitioner/plaintiff. It was the defendants who filed civil Appeal 976/98 before the Hon’ble Supreme Court challenging the judgment in S.A. 174/90. They were evidently aggrieved by the declaration of title granted in respect of plaint schedule I and II and the relief of recovery of 2.46 acres granted in respect of item No. I of plaint schedule I. 6. Although the judgment of this Court in S.A. 174/90 was set aside by the Supreme Court, it was done at the instance of the defendants. Although the judgment of this Court in S.A. 174/90 was set aside by the Supreme Court, it was done at the instance of the defendants. This Court must be deemed to have disallowed the prayer for recovery of possession in respect of plaint schedule II although this court declared the plaintiff’s title over plaint schedule II as well. This court did not grant either a perpetual injunction in respect of plaint schedule II items (obviously because the defendants were admittedly in possession of those items) and did not also grant the relief of recovery of possession. To that extent the review petitioner/plaintiff was denied relief in respect of plaint schedule II. In other words, O.S. 118/1970 Should be deemed to have been dismissed so far as the prayer for recovery of possession relating to plaint schedule II was concerned. To that extent the review petitioner/plaintiff was aggrieved by the judgment in S.A. 174/90. By not filing an appeal before the Supreme Court against the disallowed part of the decree in S.A., the review petitioner had allowed the dismissal of the suit so far as it relates to the plaint schedule II, to become final. The civil appeal before the Supreme Court was by the defendants on being aggrieved by the declaration of title regarding plaint schedule II items and the recovery of possession of 2.46 acres of item 1 of plaint schedule I. No appeal of cross-objection was filed by the review petitioner even after the defendants filed and appeal before Supreme Court. Hence, though the Supreme Court had set aside the judgment of this Court in can relate only to that part of the judgment which was appealed against. It is well settled that resjudicata can arise even at different stages of the same litigation. (Vide C.V. Rajendran and another v. N.M. Muhamamed Kunhi 2002 (7) SCC 447 Para 6, Bhanu Kumar Jain v. Archana Kumar and another – 2005 (1) SCC 787, Gopal Rao & others v. Amireddi Sitharamamma –AIR 1965 (SC) 1970 & Bharathi Amma and others v. Kumaran Peethambaran and another AIR 1990 Kerala 88. 7. There is another way of looking at the matter. 7. There is another way of looking at the matter. When this Court partly allowed S.A. 174/90 declaring title over plaint schedule I and II and granting a decree for recovery of possession of 2.46 acres from out of item No.1 in plaint schedule I, this Court was doing so without formulating substantial questions of law in that behalf. Hence the verdict of the Supreme Court can apply only to that part of the judgment of this Court wherein interference was made without formulating any substantial questions of law. To the extent that this court refused to interfere with the judgment and decree passed by the court below, there was no need for formulating any substantial question of law. Hence, looking from this perspective also the remand order by the Supreme Court can relate only to that part of the judgment by which this Court interfered with the judgments and decrees passed by the courts below. Any other interpretation would lead to the anomalous situation of the review petitioner/plaintiff deriving reliefs under a judgment which expressly declined the said reliefs and which was not appealed against. For this reason also the contention of the review petitioner cannot be sustained. 8. What now survives for consideration is the review petitioner’s objection regarding the statement in paragraph 4 of the impugned judgment that the only point argued was with regard to the claim for recovery of possession of 2.46 acres out of item No. 1 of plaint schedule I. In the first place, the statement in paragraph 4 of the impugned judgment should be taken as the last word and the review petitioner cannot be permitted to contradict the said statement. (Vide State of Maharashtra v. Ramdas Shrinivas Nayak and Another – 1983 (1) SCWR 80). That apart, as observed by the Apex Court in the aforesaid decision, if a party thinks that the happenings in Court have been wrongly recorded in the judgment, it is incumbent upon the party while the matter is fresh in the mind of the judgment to call the attention of the very same judge to call the attention of the very same Judge has made the record in the judgment. Hon’ble Mr. Justice R. Bhaskaran who pronounced the impugned judgment on 14-6-2006 was a judge of this Court till 18-7-2006. But this review petition was filed only on 27-7-2006. Hon’ble Mr. Justice R. Bhaskaran who pronounced the impugned judgment on 14-6-2006 was a judge of this Court till 18-7-2006. But this review petition was filed only on 27-7-2006. Lastly, it is reasonable to presume that the review petitioner was aware of the obstacle caused by his own conduct of not challenging before the Supreme Court the disallowed portion of the decree passed by this Court and therefore, he desperately confined his argument only to the limited question which legitimately survived for consideration. It is true that both by the earlier judgment dated 9-12-1997 and by the impugned judgment dated 14-6-2006 the review petitioner has lost an opportunity to file a separate suit for recovery of possession due to a wrong observation that there was no prayer for recovery of possession in the present suit. But then he alone is to be blamed for that. Realizing that the judgment dated 9-12-1997 in S.A. 174/90 had wrongly disallowed his prayer for recovery of possession of plaint schedule II, he should have preferred an SLP/appeal before the Hon’ble Supreme Court. Having allowed that part of the earlier judgment to become final, he cannot be heard to say that an injustice has been done to him. I see no ground to review the impugned judgment. This review petition is, accordingly, dismissed. However, in the circumstances of the case, the parties shall bear their respective costs in this review.