K.P Rajan v. Ashokan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE B.KEMAL PASHA FRIDAY, THE 3RD DAY OF JULY 2015/12TH ASHADHA, 1937 CRP.No. 556 of 2013 () ----------------------- AGAINST THE ORDER DATED 12-6-2013 IN IA NO. 215/2013 IN OS NO. 107/2012 OF MUNSIFF'S COURT, KOYILANDY ---------------------- REVISION PETITIONERS/PLAINTIFFS IN THE SUIT : --------------------------------------------------------------------------
1. K.P RAJAN, S/O. SANKARAN, AGED 56 YEARS VYDIAR, POOKKOTTERI HOUSE ULLIYERI DESOM, KOYILANDY TLAUK PIN - 673 323.
2. ANISH KUMAR P.S., S/O. PUSHPAVALLI, PUSHPA HOUSE, NUT STREET VATAKARA DESOM, VATAKARA TALUK, PIN- BY ADVS.SRI.SURESH SIVAPURAM SRI.K.V.JAYADEEP MENON SRI.T.P.RAMESH (THENGUMPILLIL) SMT.P.KRISHNAPRIYA RESPONDENTS/DEFENDANTS IN THE SUIT :
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1. ASHOKAN, S/O. CHOYI, AGED 49 YEARS KODOLIKANDY MEETHEL HOUSE, ULLIYERI KOYILANDY TALUK, KOZHIKODE, PIN - 673 323.
2. VELAYUDHAN, S/O. CHANGARAN, AGED 50 YEARS EDAVALATH KUZHIYIL HOUSE, ULLIYERI KOYILANDY TALUK, KOZHIKODE, PIN- 673 323.
3. P.P. BALAN, S/O. KANARAN, AGED 60 YEARS PANACHI PARAMBATH HOUSE, ULLIYERI KOYILANDY TALUK, KOZHIKODE, PIN- 673 323.
4. RAMAKRISHNAN, S/O. GOPALAN NAMBIAR, AGED 40 YEARS KODOLIKANDY HOUSE, ULLIYERI, KOYILANDY TALUK, KOZHIKODE, PIN - 673 323.
...2/-
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5. OTHAYOTH BABU, S/O. NARAYANAN, AGE NOT KNOWN KODOLIKANDY HOUSE, ULLIYERI, KOYILANDY TALUK, KOZHIKODE, PIN - 673 323.
6. KARUNAKARAN NAIR, S/O. KALLIANI AMMA, AGED 62 YEARS PULIKKOOL HOUSE, ULLIYERI, KOYILANDY TALUK, KOZHIKODE, PIN - 673 323.
7. RAJAN, S/O. GOVINDAN NAIR, AGED 45 YEARS MUSHNAMKANDY HOUSE, ULLIYERI KOYILANDY TALUK, KOZHIKODE, PIN- 673 323.
8. THANIKKAL NARAYANAN, S/O. KELAN, AGED 70 YEARS, THANIKKAL, ULLIYERI KOYILANDY TALUK, KOZHIKODE, PIN - 673 323.
9. UNNI NAIR, S/O. CHANDU NAIR, AGED 65 YEARS PALLIYORACHALLIL HOUSE, ULLIYERI KOYILANDY TALUK, KOZHIKODE, PIN - 673323.
10. KODOLIKANDY BABU, S/O. DAMODARAN NAMBIAR, AGED 40 YEARS ULLIYERI, KOYILANDY TALUK, KOZHIKODE PIN - 673 323.
11. VASU NAIR, S/O. AMMALU AMMA, AGED 49 YEARS KOLOTHOLI HOUSE, ULLIYERI, KOYILANDY TALUK KOZHIKODE, PIN - 673 323.
12. UNNIKRISHNAN, S/O. NARAYANAN NAIR, AGED 45 YEARS MEETHALE PULIKKOOL HOUSE, ULLIYERI KOYILANDY TALUK, KOZHIKODE, PIN - 673 323.
13. THAZHE MAPPURATH BABU, S/O. CHANDRASEKHARAN NAIR, AGED 48 YEARS MEETHALE PULIKKOOL HOUSE, ULLIYERI, KOYILANDY TALUK, KOZHIKODE, PIN- 673 323.
14. ROOPESH, S/O. NARAYANAN NAIR, AGED 38 YEARS KUTTIYERIPATTA HOUSE, ULLIYERI, KOYILANDY TALUK, KOZHIKODE, PIN - 673 323.
...3/-
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15. E.P VINOD, S/O. KANARAN, AGED 35 YEARS EENTHOTTU HOUSE, ULLIYERI, KOYILANDY TALUK, KOZHIKODE, PIN - 673 323.
16. BIJU, S/O. BHASKARAN, AGED 35 YEARS THIYYAKANDY HOUSE, NARATH, ULLIYERI, KOYILANDY TALUK, KOZHIKODE, PIN- 673 323 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 03-07-2015, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Mn
B.KEMAL PASHA, J.
==================== ===================== Dated this the 3rd day of July, 2015
O R D E R
Two trusties of a private trust filed O.S.No.107 of 2012 before the court below. There is a temple in the property being managed by the private trust. When the respondents attempted to interfere with the administration and management of the temple under the guise of "Kshethra Paripalana Committee", the petitioners filed a suit seeking the decree of perpetual injunction. There were other litigations also in respect of the property. All those litigations came to an end. The petitioners could not make mention of the details with regard to those decrees in the plaint. As they apprehended that they would fail in the suit because of such formal defects, they filed I.A.No.215 of 2013 to withdraw from the suit with an opportunity to file a fresh suit
-: 2 :- on the same subject matter, as per Order 23 Rule 1 (3) CPC.
2. The respondents resisted the said I.A. by contending that the formal defects allegedly occurred have not been disclosed by the petitioners. Through the impugned order, the court below has held that the ground that the details of the earlier suit could not be disclosed on account of lack of proper advice, is the only ground mentioned in the I.A. and no other reasons are mentioned. The question to be considered in the matter is whether the same constitute 'formal defect' within the meaning of Order 23 Rule 1(3) CPC. When there were earlier litigations with regard to the suit and decrees are there directly concerning the suit property, the nondisclosure of such material facts are no doubt material defects within the meaning of Order 23 Rule 1 (3). There is no reason for the court below to dismiss the I.A. At the time when the I.A. was considered, the court below ought to have considered the locus standi of
-: 3 :- the respondents also in the matter. When the petitioners have claimed their right over the property in their capacity as trusties of a private trust, the court below ought to have seriously considered the said I.A. After all, it is a simple suit for injunction. When the petitioners have highlighted the aforesaid formal defects and sought for the withdrawal of the said suit with leave to file a fresh suit, the court below ought to have allowed the said I.A. The dismissal of the I.A. through the impugned order has resulted in substantial miscarriage of justice and therefore, the said order is liable to be set aside.
In the result, the C.R.P. is allowed and the impugned order is set aside. I.A.No.215 of 2013 in O.S.No.107 of 2012 stands allowed and the petitioners are permitted to withdraw from the suit with liberty to file a fresh suit on the same subject matter under Order 23 Rule 1(3) CPC. Sd/- B.KEMAL PASHA JUDGE DSV/4/7/15