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The Metal Industries (Ltd), represented by its Chairman & Another v/s Geetha Parangath & Another

    FAO. No. 248 of 2011

    Decided On, 23 July 2013

    At, High Court of Kerala

    By, THE HONOURABLE MR. JUSTICE THOMAS P. JOSEPH

    For the Appellants: P. Jayaram, Advocate. For the Respondents: R1 & R2, Santheep Ankarath, Sumodh Madhavan Nair, Advocates.



Judgment Text

1. This appeal is brought from the judgment dated 16.07.2011 in A.S. No.12 of the Sub Court, Ottappalam. The lower appellate court set aside judgment and decree of the Munsiff's Court, Ottappalam in O.S. No.205 of 1998 and remitted the case for fresh decision after identifying the suit property with the assistance of an Advocate Commissioner.

2. The following substantial questions of law are framed for a decision.

(i) Is not there want of jurisdiction for the lower appellate court to remand the case to the trial court for identification of the property after the High Court has affirmed order of the trial court dismissing the application for identification of the suit property?

(ii) Could the lower appellate court validly re-open the order of trial court on the application after trial court's order was found to be legally sustainable and affirmed by the High Court?

(iii) Has not the issue of identification of plaint schedule property become res judicata by the High Court confirming the order passed by the trial court in I.A. No.2010 of 2001?

3. Respondents claimed title and possession of the suit property - 71 cents in Sy.No.3/3A and 3/3B of Shornur Village as per Exts.A2 and A3 (Ext.A1 is the prior document). They claimed to have purchased landlord's right over the said property as per Exts.A4 and A5. They alleged that the appellants are attempting to trespass into the said property and prayed for a decree for prohibitory injunction against trespass.

4. Appellants contended that the suit property is part of property obtained by the 1st appellant as per Ext.B1, Kanom assignment deed of the year, 1949. The 1st appellant purchased landlord's right over the said property as per Exts.B1 and B2. Appellants disputed title and possession claimed by the respondents and claimed that the suit property is not identifiable.

5. In view of the contention the appellants raised in the written statement regarding title to the suit property, learned Munsiff raised an issue regarding title. Respondents amended the plaint and paid court fee under Section 27(a) of the Kerala Court Fees and Suits Valuation Act, 1959 (for short, "the Act").

6. The appellants filed application for the appointment of an Advocate Commissioner to identify the suit property. That application was allowed. They however, did not remit the batta ordered by the learned Munsiff. Respondents filed application to permit them pay the batta ordered by the learned Munsiff (on the application for commission preferred by the appellants). Learned Munsiff dismissed that application.

7. The parties went to trial. After evidence was recorded, the respondents filed I.A. No.2010 of 2001 for the appointment of an Advocate Commissioner to identify the suit property with reference to their documents of title. Learned Munsiff dismissed that application observing that since no dispute regarding identity of the property is involved, identification by the Advocate Commissioner is not necessary.

8. Respondents challenged that order in this Court in C.R.P. No.3115 of 2001. This Court, by order dated 13.03.2002 dismissed the revision observing that the suit being one for injunction, only question for decision is possession of the property and that if identification of the property was necessary, respondents should have moved the application earlier. Respondents filed R.P. No.437 of 2002 for a review of the order dismissing C.R.P. No.3115 of 2001. R.P. No.437 of 2002 was dismissed by order dated 13.02.2003. Later, learned Munsiff dismissed the suit for reasons including that in spite of there being a dispute regarding identity, respondents have not taken steps to identify the property.

9. Challenging judgment and decree of the learned Munsiff, 1st respondent filed A.S. No.12 of 2005 in the Sub Court, Ottappalam. Learned Sub Judge was of the view that since there is dispute regarding identity of the property and an issue regarding title is raised, it is necessary to identify the suit property with reference to the documents of title relied on by the respondents. Learned Sub Judge observed that notwithstanding dismissal of I.A. No.2010 of 2001 it is necessary that respondents are given opportunity to take out a commission for the purpose. Accordingly the appeal was allowed by way of remand to identify the suit property with reference to the title deeds of the respondents and boundaries mentioned in the plaint schedule. That remand order is under challenge, on the substantial questions of law framed above.

10. The learned counsel for the appellants contended that the lower appellate court failed to notice that dismissal of I.A. No.2010 of 2001 filed by the respondents for appointment of an Advocate Commissioner to identify the suit property was confirmed by this Court in C.R.P. No.3115 of 2001 and even a review of that order was not permitted, as seen from the order on R.P. No.437 of 2002. It is argued that since the order on I.A. No.2010 of 2001 has merged in the order in C.R.P. No.3115 of 2001, the lower appellate court was bound by the said order. The lower appellate court could not have considered the question of identification of the suit property. It is argued that Section 105 of the Code of Civil Procedure, 1908 (for short, "the Code") would not come to the rescue of the respondents since the order on I.A. No.2010 of 2001 was confirmed by this court in C.R.P. No.3115 of 2001. It is further argued that there is no challenge in the memorandum of appeal to the correctness of the order on I.A. No.2010 of 2001 and hence also the lower appellate court could not have considered the question of identity of the suit property. Learned counsel has placed reliance on the decisions in Laxminarayan v. Sultan Jehan Begum (AIR (38) 1951 Hyderabad 132), Shankar v. Krishna (AIR 1970 SC 1), Jasraj v. Hemraj (AIR 1977 SC 1011) and Collector of Central Excise v. Hindustan Lever Ltd., Chhiundwara (AIR 2000 SC 2907).

11. The learned counsel for the respondents has contended that though the order on I.A. No.2010 of 2001 was confirmed by this Court in C.R.P. No.3115 of 2001 learned Munsiff, while dismissing I.A. No.2010 of 2001 and this Court while dismissing C.R.P. No.3115 of 2001 and R.P. No.437 of 2002 have proceeded on the wrong assumption that the suit is merely for prohibitory injunction based on possession. Both the courts failed to notice that the appellants have disputed identity of the suit property and title claimed by the respondents and an issue regarding title was raised by the trial court for a decision. By amendment of the plaint the respondents paid court fee under Sec.27(a) of the Act. Hence an enquiry into and a finding on the question of title was necessary. In the circumstances it was necessary that the suit property was identified with reference to the relevant documents. One of the reasons for dismissal of the suit is want of identification of the suit property. While deciding the appeal, the lower appellate court was concerned with the correctness of the reasons which led to the dismissal of the suit. In that situation, notwithstanding dismissal of I.A. No.2010 of 2001 and its confirmation by this Court in C.R.P.No.3115 of 2001, the lower appellate court was entitled and competent to order identification of the suit property. Learned counsel has placed reliance on Sec.105 of the Code. It is argued that while this Court in C.R.P. .No.3115 of 2001 and R.P. No.437 of 2002 was only concerned with the correctness of the order on I.A. No.2010 of 2001, the question for consideration in the appeal is not correctness of the order on I.A. No.2010 of 2001 but as to how that order has affected the decision in O.S. No.205 of 1998. Learned counsel has placed reliance on the decision in Ishwar Dass Jain (dead) through Lrs. v. Sohan Lal (dead) by Lrs. (2000 KHC 900). It is also argued that at any rate it is open to the lower appellate court to call for further evidence if, for a proper and effective adjudication of the dispute such additional evidence is required.

12. The doctrine of merger is generally spoken to with respect to orders passed by the superior courts in appeal. The revisional jurisdiction the High Court under Sec.115 of the Code is part of its general appellate jurisdiction as a superior court. It is a mode of exercising power conferred by the statute. Strictly speaking the doctrine of merger may not apply to orders passed in revision. But, when this Court dismissed C.R.P.No.3115 of 2001, it amounted to a confirmation of the order on I.A.No.2010 of 2001.

13. Section 105 of the Code relieves a party from challenging correctness of every order which is a step in the further progress of the proceeding then and there - he can challenge such orders while challenging the ultimate decision in the case if such orders have affected the decision of the case. The provision itself indicates that if the affected party has already challenged such order in the superior court and the order is confirmed, then he cannot again challenge correctness of the order of the trial court while challenging the decision of the case. That is the view taken in Laxminarayan v. Sultan Jehan Begum (supra).

14. The Supreme Court in Soni Dineshbhai Manilal v. Jagjivan Mulchand Chokshi ([2007] 13 SCC 293) has held in paragraph 21, referring to Sec.105 of the Code;

"what is essential is that they should not have been appealed against. If a revision has been filed which is a part of the appellate jurisdiction, although stricto sensu, the doctrine of merger may not apply but Section 105 of the Code also would not apply in such cases. Each of those orders attained finality..."

The above observations also would show that when the order (correctness of which is canvassed in the appeal arising from the decree) had already been challenged in the superior court and confirmed, the error, defect or irregularity in such order even if it affected the decision of the case cannot be set forth as a ground of objection in the memorandum of appeal invoking Sec.105 of the Code. The party affected would be bound by the order of the trial court as confirmed by the superior court. The decision in Ishwar Dass Jain (dead) through Lrs. v. Sohan Lal (dead) by Lrs. (supra) relied on by the respondents cannot apply to the facts of this case since in the reported case a revision under Sec.115 of the Code in challenge of the interlocutory order was dismissed as not maintainable and the correctness of the order was later set up as a ground of objection to the decision in the case under Sec.105 of the Code. The respondents therefore could not challenge the error, defect or irregularity in the order on I.A. F No.2010 of 2001 in the appeal arising from dismissal of the suit invoking Sec.105 of the Code.

15. It is not disputed that in the memorandum of appeal filed in the lower appellate court against the judgment and decree of the trial court, the respondents have not set up correctness of the order on I.A. No.2010 of 2001 as a ground of objection to the judgment and decree. To invoke Sec.105 of the Code, the memorandum of appeal must specifically contain a challenge to the error, defect or irregularity in the order concerned. Section 105 of the Code makes this clear. The provision says that the error, defect or irregularity in the order, "may be set forth as a ground of objection in the memorandum of appeal". The Supreme Court also has pointed out this in Soni Dineshbhai Manilal v. Jagjivan Mulchand Chokshi (supra). For the said reason also the respondents could not fall back upon Sec.105 of the Code to challenge the error, defect or irregularity in the order on I.A. No.2010 of 2001 as confirmed by this Court in C.R.P. No.3115 of 2001 even if that order has affected the decision of the suit.

16. Then the question is whether matters should end there? I am inclined to think that it should not, as it would amount to a refusal to exercise jurisdiction vested with the court and a consequent negation of justice having regard to the facts of the case.

17. Though the respondents prayed for a decree for prohibitory injunction based on possession of the suit property, in view of the contentions the appellants raised setting up title for themselves and disputing title claimed by the respondents, learned Munsiff raised an issue regarding title. In view of that and as permitted by the learned Munsiff, the respondents paid court fee under Sec.27(a) of the Act by amending the plaint. Hence an enquriy into and a decision on title was necessary. The appellants disputed identity of the suit property claiming that it is part of property belonging to them. Hence identification of the suit property was necessary. A decision on title cannot be based on surmises and conjectures. A proper plan after measurement of the property with relevant records is essential (see K.B.Ambujakshy Amma & Another v. Gopi and Another - 1989 [2] KLJ 705).

18. The appellants made the initial attempt for identification of the property. That application was allowed. The appellants did not remit the batta. Appointment of the Advocate Commissioner though at the instance of the appellants being for identification of the suit property enure to the benefit of the respondents also. They could remit the batta ordered by the learned Munsiff. They attempted at that and filed application to permit them pay the batta but the learned Munsiff dismissed that application. Though after recording of evidence, respondents filed I.A.No.2010 of 2001 in the trial court to appoint an Advocate Commissioner to identify the property. That application was dismissed for the reason that there was no dispute as to identity of the property (when admittedly there is such a dispute) and that the suit being merely for injunction, identification of the property is not essential. Later, learned Munsiff dismissed the suit for reasons including that in spite of a dispute as to the identity of the suit property, respondents did not get the property identified through an Advocate Commissioner.

19. The result is that there is a dispute between the parties regarding title to the suit property and its identity. As the respondents have paid court fee under Sec.27(a) of the Act, that dispute cannot be left unresolved. I am not inclined to think that courts can afford to leave disputes brought before it unresolved. That is no decision at all. Nor could the court (in view of the facts of this case) relegate the parties to another litigation. The endeavour of the court should be to avoid multiplicity of suits and resolve the disputes as far as possible in the pending suit itself.

20. Under Sec.9 of the Code civil court has jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. 'Jurisdiction' means the legal authority to administer justice according to the means which the law has provided and subject to the limitation imposed by that law upon the judicial authority. Jurisdiction of the civil court is plenary. The 'court' is an adjudicating body which performs judicial function of rendering definite judgments having finality and authoritativeness to bind the parties litigating their rights before it in exercise of the sovereign judicial power transferred to it by the State. The sovereign judicial power of the State to try all suits of a civil nature is transferred to the civil court subject to the exception stated in Sec.9 of the Code.

21. Under Rule 2 of Order XIV of the Code the court, subject to the provisions of sub-rule (2) has to pronounce a 'judgment' on all issues. A 'judgment' is the final and solemn adjudication and determination of the rights of the parties in and to the subject matter litigated. The Code confers wide powers on the court to determine the issues raised before it and pronounce judgment on such issues. For instance, Rule 2(4) of Order XVIII of the Code empowers the court, for reasons to be recorded to direct or permit any party to examine any witness at any stage of the suit. Rule 18 of Order XVIII empowers the court to inspect any property or thing concerning which any question may arise in the suit at any stage of the suit. Rule 9 of Order XXVI confers power on the court to issue a commission for local investigation. Exercise of powers as illustrated above is not dependent on any of the parties making a request to the court in that behalf. Even without such request the court can exercise such powers its own or and do what is necessary, direct any of the parties before it to take the necessary steps. If a party refuses to perform an act as directed by the court without sufficient reason, the court is vested with the power to strike off his pleadings. The sovereign judicial power is conferred on the court to determine the disputes before it in discharge of its functions in a fair and just manner, pronounce judgment on the disputes and thereby render justice to the parties before it.

22. Such powers are vested with the appellate courts also. Section 107(2) of the Code says that subject to sub-sec.(1), the appellate court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by the Code on the court of original jurisdiction. Rule 27(1)(b) of Order XLI enables the appellate court to require any document to be produced or any witness to be examined to enable it pronounce judgment in the case. Referring to Rule 27(c) of Order XLI of the old Code (corresponding to Rule 27(b) of the present Code) this Court held in Manuel T.Paikaday v. State of Kerala and Another (1970 KLJ 142) that a distinction has to be made between a document which is necessary to prove a party's case and one which is necessary for the court to discharge its functions. In the latter case, the court has to allow such evidence to be brought up in appeal even if there was some negligence on the party as the court has to allow such evidence to be brought up in appeal "for its own sake".

23. The scheme of provisions in the Code shows that notwithstanding the right or privilege conferred on a party to the lis, sovereign judicial power is conferred on the court to act on its own sake for the proper administration of justice and in discharge of its functions. For, ultimately it is the obligation of the court to pronounce a proper judgment on the issues raised before it and resolve the dispute brought before it.

24. In this case, the attempt of the respondents to take out a commission to identify the suit property though bit belatedly was foiled and that too, erroneously. No doubt, the respondents could not challenge correctness of the order dismissing I.A.No.2010 of 2001 for commission in the appeal against dismissal of the suit invoking Sec.105 of the Code for reasons already stated. But that only precludes the respondents from challenging correctness of the order on I.A. No.2010 of 2001 in the appeal from the judgment and decree dismissing the suit. Section 105 of the Code does not preclude the court from exercising the sovereign judicial power conferred it (in appropriate cases) in this case the power under Rule 9 of Order XXVI of the Code. The appellate court could on its call for a report and plan identifying the suit property or direct the respondents to take necessary steps for that and receive additional evidence. The appellate court can also order a remand of the case and direct the trial court to do so. This is clear by the introduction of Rule 23A in Order XLI of the C

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ode by Act 104 of 1976 when Sec.105 remained in the Code as such. Rule 23A of Order XLI of the Code introduced by Act 104 of 1976 confers wide powers on the appellate court to order a remand for re-trial. That power is not inhibited by the acts or omissions of parties. (See REMCO Inds. Workers House Building Co-op. Society v. Lakshmeesha M. (AIR 2003 SC 3167). 25. In this case for a proper adjudication of the issues involved, identification of the suit property with reference to the relevant documents is necessary. Dismissal of C.R.P.No.3115 of 2001 which only precludes the respondents from challenging the error, irregularity or defect in the order on I.A.No.2010 of 2001 in the appeal against the judgment and decree does not prevent the court from exercising the power conferred on it under Rule 9 of Order XXVI of the Code. To prevent injustice being perpetuated and to enable the court pronounce judgment on the issue, such a course is necessary. 26. True that the lower appellate court has not adverted to the above aspects while ordering a remand. But this Court is competent to consider that question and take appropriate decision (See Madhavan Pillai v. Ebrahim - 1964 KLT 313 and Damayanthi v. Theyyuma and Others - 1979 KLT 85). 27. The above discussion leads me to the conclusion that a report and plan identifying the suit property with reference to the documents of title relied on by both parties are essential to resolve the disputes raised in the suit and pronounce judgment in the case. In that view of the matter I do not find reason to interfere with the order of remand passed by the lower appellate court. 28. It is however directed that the trial court shall issue necessary direction to the Advocate Commissioner and the Surveyor to identify the suit property with reference to the documents of title relied on by both sides and other relevant records. 29. The substantial questions of law raised are answered as above. The appeal is dismissed subject to the direction made above. The parties shall suffer their costs. All pending Interlocutory Applications will stand dismissed.
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