IN THE HIGH COURT OF KERALA AT ERNAKULAM
FAO.No. 258 of 2008()
1. M.M.PHILIP, MELEMURIYIL HOUSE,
... Petitioner
Vs
1. KERALA STATE, REPRESENTED BY THE
... Respondent
2. TAHSILDAR, KOZHENCHERRY TALUK,
3. DIVISIONAL FOREST OFFICER,
For Petitioner :SRI.LIJU.V.STEPHEN
For Respondent : No Appearance
The Hon'ble MR. Justice KURIAN JOSEPH
The Hon'ble MR. Justice K.T.SANKARAN
Dated :02/12/2009
O R D E R
KURIAN JOSEPH & K.T.SANKARAN, JJ.
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F.A.O. NO. 258 OF 2008
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Dated this the 2nd day of December, 2008
JUDGMENT
K.T.Sankaran, J.
Aggrieved by the judgment dated 16th June 2004 in A.S. No.
58 of 1996, Additional District (Adhoc) Court I, Pathanamthitta, the
plaintiff- appellant filed F.A. O. No.216 of 2004 before this Court.
The FAO was disposed of by the judgment dated 9th December
2005. The Appeal was dismissed without prejudice to the right of
the appellant to approach the appellate court for necessary reliefs.
The appellant had raised a contention that he had not made any
concession before the lower appellate court for remanding the case
to the trial court. After disposal of the FAO, the appellant filed I.A.
No.109 of 2006 to review the judgment of the lower appellate Court.
That application was dismissed, which is under challenge in this
Appeal.
2. The appellant filed O.S.No.224 of 1990 on the file of the
Court of the Subordinate Judge of Pathanamthitta against the State
of Kerala, the Tahsildar and the Divisional Forest Officer for a
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decree declaring that the plaintiff is not liable to pay any amount or
interest to the defendants and that all proceedings initiated by the
defendants against the plaintiff under the Kerala Revenue Recovery
Act are illegal, void, ultra vires and without any authority. There was
also a prayer for consequential injunction restraining the defendants,
by a prohibitory injunction, from taking any proceedings under the
Revenue Recovery Act for the recovery of any amount from the
plaintiff.
3. The case of the appellant/plaintiff is the following: On
5.7.1989, the 3rd defendant conducted an auction for sale of teak
poles collected in Mannarappara Range in Konni Forest Division.
The plaintiff was the highest bidder for Rs. 6,82,093/-. He made the
initial deposit of Rs. 20,000/-. The bidder could remove the teak
poles only after confirmation of the auction. Confirmation of the
auction was made only 7-9-1989. By that time, there was heavy rain
throughout the State. Therefore, the plaintiff could not transport the
teak poles. The Forest Department conducted a re-auction on
2.2.1990 for a lesser amount. The Department claimed from the
plaintiff the loss sustained in re-auction. Steps under the Revenue
Recovery Act were taken for realisation of the amount. It is stated, a
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sum of Rs. 1,95,324/- was claimed as arrears. A chalan was issued
by the 3rd defendant claiming a sum of Rs.1,95,324/-. After issuing
notice to the defendants under Section 80 of the Code of Civil
Procedure, the suit was filed by the appellant for the aforesaid
reliefs.
4. The suit was resisted by the defendants. The defendants
contended, inter alia, as follows: There was no condition that the
confirmation of auction should be made within seven days as
alleged. The contract is not frustrated as alleged. It was specifically
provided in the general conditions of auction that the Department will
not be liable for any damage to the teak poles due to flood or fire.
The plaintiff failed to remit the balance sale price. Therefore, re-
auction became necessary. The plaintiff was informed of the same
by the notice dated 18-12-1989. Re-auction was conducted on 2-2-
1990 in which the successful bidder offered only Rs.5,07,043/- The
deficit and the sales tax were to be recovered from the plaintiff for
which the chalan was issued. Since the plaintiff did not pay the
amount, steps were taken for realisation of the amount by resorting
to revenue recovery proceedings. The plaintiff has no cause of
action. The plaintiff is not entitled to any relief in the suit.
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5. The judgment of the trial court is cryptic. After holding that
there was delay in confirmation, issue Nos. 2 and 3 were answered
thus:
“.. The bid amount of the plaintiff was Rs.6,31,095/-. In
the second auction an amount of Rs.1,23,665/- was in
deficit. But in the notice Ext.A1 an amount of
Rs.1,95,921/- is claimed. Ext.A2 is the chalan issued by
the defendants to the plaintiff for deposit sum of
Rs.1,95,324/-. A perusal of Ext.A2 chalan would show
that defendants arrived at the figure shown in the chalan
arbitrary. Sale tax is shown as Rs.39,04,043/-, income
tax is shown as Rs.36,860/- and so on. It is therefore
evident that what is claimed in Ext.A1 and A2 is not the
correct amount due from the plaintiff. Issues decided
accordingly.”
6. After arriving at the above finding, the trial court answered
issue No. 4 thus:
“10. Issue No.4:- In the plaint, declaration that
the plaintiff is not liable to pay any amount to the
defendants is prayed for. The contention of the
defendants is that the plaintiff was at laches and
consequently the Government suffered a loss of
Rs.1,23,665/- on account of the re-auction. Since the
plaintiff is not liable to pay Rs.1,95,921/- as demanded
in Exts.A1 and A2, the Revenue Recovery Proceedings
for the recovery on that amount is liable to be injuncted.
The question whether any amount is due from the
plaintiff to the defendant on account of the deficit in the
second auction, is left open.”
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7. The plaintiff challenged the judgment and decree of the trial
Court in A.S. No.58 of 1996 on the file of the Court of the Additional
District Judge (Adhoc Court I), Pathanamthitta. The lower appellate
Court remanded the suit to the trial court for fresh disposal for
answering all the issues. The lower appellate Court held in
paragraph 8 of the judgment, thus:
“8. Both sides have conceded before me that the
issues are not answered by the trial court and also that
the trial court had adopted short cut method without
answering the issues framed it. That alone had resulted
this appeal. I find much force in the argument of the
learned counsel appearing for the appellant that the trial
court had failed in its duty by resorting to such a short
cut disposal. A party who had come before court paying
the requisite court fee and praying for declaratory relief
has every right to pursue the same till his claim is either
allowed or disallowed. Here the court below had not
done either. Instead the court had left open all the
issues worth the name at which the parties were at
variance. Certainly the trial court had gone wrong
thereby. The above point is answered accordingly, in
favour of the appellant.”
8 The aforesaid judgment dated 16-6-2004 was challenged by
the plaintiff in F.A.O.No.216 of 2004. This court rejected the
contention of the plaintiff/appellant that the lower appellate court was
not justified in remanding the case to the trial court leaving open all
the issues. It was held thus:
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“In this appeal learned counsel for the appellant
contended that there was no such concession made by
the counsel and the appellate court went wrong in
directing the entire issues to be considered afresh when
as a matter of fact the defendants did not file any appeal
against that portion of the judgment granting injunction
in favour of the plaintiff……………. After hearing the
learned counsel for the appellant as well as the learned
Government Pleader we find no reason to interfere in
this appeal.”
9. After holding thus, this Court granted liberty to the
appellant/plaintiff to approach the lower appellate Court to apply for
review, if he is agreed by the observation that there was a
concession for remand.
10. Thereafter, the plaintiff filed I.A. No.109 of 2006 before the
trial court under Order 47 Rules 1 and 3 and Section 114 of the
Code of Civil Procedure to review the order of remand. The lower
appellate Court dismissed the application by the order dated 23rd
July 2008, which is under challenge in this Appeal.
11. The court below held, in the order dated 23rd July 2008,
thus:
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“9. On going through the judgment of the learned
Sub Judge it is crystal clear that all the issues have not
been properly answered. The plaintiff/petitioner has
filed the suit seeking a declaratory relief to the effect that
he is not liable to pay any amount as claimed by the
defendants/respondents as per Ext.A1 demand notice
dated 6.7.1995. So also the plaintiff wants to restrain
the defendants from taking any revenue recovery steps
against him on the basis of Ext.A1 demand notice. It is
alleged by the respondents in the written statement that
there is failure on the part of the petitioner in removing
teak poles in time and it invited a re-auction of the teak
poles and a loss to the tune of Rs.1,95,324/- to the
respondents. In the second auction the deficit amount
is Rs.1,23,665/-. As per Ext.A1 notice the amount
claimed is Rs.1,95,921/-. Where as, the amount
mentioned in Ext.A2 chalan is Rs.1,95,324/-. It is in this
context the learned Sub Judge held that there is
inconsistency with respect to the amount claimed by the
respondents. At the same time, the learned Sub Judge
has not considered the question whether the
plaintiff/petitioner is liable to pay any amount to the
defendants/respondents or not. Actually this is the main
question to be considered by the trial court to see
whether any revenue recovery steps can be taken
against the plaintiff/petitioner for realising the amount.
10. According to the petitioner it has not been
conceded by the parties for a remand. In paragraph 6 of
the judgment it is stated thus by the appellate court,
“both sides have stated before me that the issues are
not answered by the trial court and also that the trial
court had adopted short-cut method without answering
issues framed”. This does not mean that both parties
have conceded for a remand of the case. Even if such a
concession is not made by the parties it is highly
essential to remand this case to the trial court as the
main issue as aforesaid regarding the declaratory relief
has not been answered by the trial court. It is the
plaintiff who seeks for a declaratory relief to the effect
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that he is not liable to pay any amount to the
defendants/respondents as claimed in Ext.A1 and A2.
In case this issue is not answered properly it is
prejudicial to the interest of the plaintiff/petitioner. So,
the remand of the case to the trial court for a fresh trial
and disposal will not in any way affect the interest of the
petitioner but only facilitate to redress his grievances
through a proper adjudication. In short, I hold that there
is no apparent error on the face of records to review the
remand order dated 16.6.2004. Hence the review
petition is liable to be dismissed.”
12. The learned counsel for the appellant contended that the
trial court had granted a decree for prohibitory injunction. The
defendants did not file any appeal against the decree. The appeal
was filed by the plaintiff. Therefore, the lower appellate court was
not justified in remanding the whole case to the trial court. The
counsel also relied on the decisions of the Supreme Court in
Chokalingaswami Idol V. Gnanapragasam : (2008) 4 SCC 219
and Choudhary Sahu V. State of Bihar : AIR 1982 S.C. 98 in
support of his contention.
13. The above contention was raised by the appellant in FAO
No.216 of 2004. However, it was not apparently accepted by the
High Court.
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14. We are of the view that the appellant is precluded from
raising the above contention since such a contention was raised in
FAO.No.216 of 2004 and it was apparently rejected. He cannot
raise the same contention in the Appeal against the order dismissing
the Review Petition. Principles of res judicata would bar the
appellant from contending so.
15. We are also of the view that the lower appellate Court was
justified in remanding the whole case to the trial court. The suit was
for declaration and consequential injunction. In so far as the
declaratory relief is concerned, the trial court did not decide the
issue. Apparently, the question was left open. When the relief of
declaration was not granted, it was not proper for the trial court to
grant a decree for consequential injunction. The nature of the relief
claimed is such that injunction could not be granted without finding
whether the plaintiff is entitled to get a decree for declaration prayed
for by him. The lower appellate Court was, therefore, justified in
remanding the case to the trial court with a direction to decide all the
issues including the issue regarding consequential injunction. We
are of the view that the lower appellate Court did not commit any
error in this regard. When the very question of founding any relief
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was not decided by the trial court, it was not justified in simply
granting a decree for injunction on the ground that there was some
mistake in the amount shown in the Revenue Recovery notice.
16. In Chockalingaswami Idol’s case : (2008) 4 SCC 219,
there was a finding regarding the ownership of land in question
against the Government. The Government did not file any Appeal.
In that context, the Supreme Court held that the finding could not be
reversed by the appellate Court on an appeal filed by a party
defendant. On the finding rendered by the trial court against the
Government, the suit was liable to be decreed. In the present case,
the position is different. A decree could not be passed on any
finding rendered by the trial court. The trial Court did not arrive at
any finding on the merits so as to answer the issues involved in the
case. As rightly pointed out by the lower appellate court and as
conceded by the parties, the trial court made a short cut.
17. Rule 33 of Order XLI of the Code of Civil Procedure reads
as follows:
“33. Power of Court of Appeal:- The Appellate
Court shall have power to pass any decree and make
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and to pass or make such further or other decree or
order as the case may require, and this power may be
exercised by the court notwithstanding that the appeal is
as to part only of the decree and may be exercised in
favour of all or any of the respondents or parties,
although such respondents or parties may not have filed
any appeal or objection, and may, where there have
been decrees in cross-suits where two or more decrees
are passed in one suit, be exercised in respect of all or
any of the decrees, although an appeal may not have
been filed against such decrees.
Provided that the Appellate Court shall not make
any order under Section 135-A, in pursuance of any
objection on which the Court from whose decree the
appeal is preferred has omitted or refused to make such
order.”
18. In Choudhary Sahu’s case: A.I.R. 1982 SC 98, it was
held:
“12. The object of this rule is to avoid
contradictory and inconsistent decisions on the same
questions in the same suit. As the power under this rule
is in derogation of the general principle that a party
cannot avoid a decree against him without filing an
appeal or cross-objection, it must be exercised with care
and caution. The rule does not confer an unrestricted
right to re-open decrees which have become final
merely because the appellate Court does not agree with
the opinion of the Court appealed from.
13. Ordinarily, the power conferred by this rule
will be confined to those cases where as a result of
interference in favour of the appellant further
interference with the decree of the lower Court is
rendered necessary in order to adjust the rights of the
parties according to justice, equity and good
conscience. While exercising the power under this rule
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the Court should not, lose sight of the other provisions of
the Code itself nor the provisions of other laws, viz., the
Law of Limitation or the Law of Court-fees etc.”
19. In Nirmala Bala Ghose V. Balai Chand Dhose: AIR
1965 SC 1874, it was held:
“The rule is undoubtedly expressed in terms
which are wide, but it has to be applied with discretion,
and to cases where interference in favour of the
appellant necessitates interference also with a decree
which has by acceptance or acquiescence become final
so as to enable the Court to adjust the rights of the
parties. Where in an appeal the Court reaches a
conclusion which is inconsistent with the opinion of the
Court appealed from and in adjusting the right claimed
by the appellant it is necessary to grant relief to a
person who has not appealed, the power conferred by
O.41, R.33 may properly be invoked. The rule,
however, does not confer an unrestricted right to re-
open decrees which have become final merely because
the appellate Court does not agree with the opinion of
the Court appealed from.”
20. In Mahant Dhangir and another v. Shri Madan Mohan
and others (AIR 1988 SC 54), it was held:
“.. The appellate court could pass any decree or
order which ought to have been passed in the
circumstances of the case. The appellate court could
also pass such other decree or order as the case may
require. The words “as the case may require” used in
R.33 of O.41 have been put in wide terms to enable the
appellate court to pass any order or decree to meet the
ends of justice. What then should be the constraint ?
We do not find many. We are not giving any liberal
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interpretation. The rule itself is liberal enough. The only
constraints that we could see may be these: That the
parties before the lower court should be there before the
appellate court. The question raised must properly arise
out of judgment of the lower court. If these two
requirements are there, the appellate court could
consider any objection against any part of the judgment
or decree of the lower court. It may be urged by any
party to the appeal. It is true that the power of the
appellate court under R.33 is discretionary. But it is a
proper exercise of judicial discretion to determine all
questions urged in order to render complete justice
between the parties. The court should not refuse to
exercise that discretion on mere technicalities.”
21. We also find support from the following decisions of the
Supreme Court. Harihar Prasad Singh and others v. Balmiki
Prasad Singh and others (AIR 1975 SC 733); Chaya and others v.
Bapusaheb and others ((1994) 2 SCC 41); K.Muthuswami
Gounder v. N.Palaniappa Gounder (AIR 1998 SC 3118);
M/s.Bihar Supply Syndicate v. Asiatic Navigation and others
(AIR 1993 SC 2054) and Narayanarao v. Sudarshan (1995 Suppl
(4) SCC 463).
22. Rule 33 of Order XLI of the Code of Civil Procedure is
based on the principle that the appellate court should have the
power to do complete justice between the parties. It also aims to
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avoid contradictory decrees. The Rule confers wide discretionary
power on the appellate court. However, the discretion is to be
exercised with great care and caution. No hard and fast rule can be
laid down in the matter of exercise of the power. Each case must
depend upon the facts of the case. The appellate court allowed the
appeal filed by the appellant/plaintiff and remanded the case to the
trial court. The question whether the plaintiff is entitled to the relief
of declaration has to be considered by the trial court, in view of the
remand of the suit. If so, the decree for injunction passed by the trial
court, which relief was prayed as a consequential relief, could not
remain as such. After retaining the decree on the consequential
relief, the prayer for declaration could not be directed to be
considered afresh. Therefore, the course open to the appellate court
was to direct the trial court to consider all the issues involved in the
suit. That was certainly in consonance with the provisions of Rule 33
of Order 41 of the Code of Civil Procedure.
23. We are of the view that the lower appellate Court was
justified in dismissing the application. The suit was filed in 1990.
For the reason that the trial court did not deal with the suit in a
proper manner, following the mandate of Rule 2 of Order XIV of the
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Code of Civil Procedure, disposal of the suit was delayed by about
nineteen years.
For the aforesaid reasons, we dismiss the Appeal.
(KURIAN JOSEPH)
Judge
(K.T.SANKARAN)
Judge