IN THE HIGH COURT OF KERALA AT ERNAKULAM
AS.No. 713 of 1993()
1. GOVT. OF KERALA REP.BY THE CHIEF SECY.
... Petitioner
Vs
1. JACOB JOSEPH
... Respondent
For Petitioner :GOVERNMENT PLEADER
For Respondent :SRI.THOMAS V.JACOB
The Hon'ble MR. Justice PIUS C.KURIAKOSE
Dated :21/05/2008
O R D E R
PIUS C. KURIAKOSE,J.
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A.S.No.713 of 1993
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Dated: 21st May, 2008
JUDGMENT
The Government and the Public Officers who were respectively
defendants 1 to 4 before the trial court are the appellants. The suit
was for declaration and an injunction in respect of the suit property
having an extent of 11.65 acres to which the plaintiffs claimed title
and possession by virtue of Exts.A1 and A2 partition deeds and
earlier documents. Noticing that the defendants had not filed written
statement in spite of several opportunities given, the court set the
defendants ex parte on 28.10.1991. Thereafter the respondents-
plaintiffs filed application for issuance of commission for ascertaining
the value of improvements effected on the properties and the
appellants-defendants filed I.A.No.1356/92 under Order IX Rule 7 for
getting the ex parte order set aside and for acceptance of the written
statement which had been filed along with the application. By a
separate detailed order the court below dismissed the I.A. holding on
the authority of several decisions that the application under Order IX
Rule 7 is not maintainable in law since the case stood posted for
judgment. Thereafter on the basis of the evidence adduced by the
respondents-plaintiffs which consisted of the oral testimony of P.W.1,
A.S.No.713/93 – 2 –
the 2nd plaintiff and documents Exts.A1 to A8, the court below
decreed the suit. In doing so, the court below found on the basis of
the evidence placed on record that the suit properties were part of
the registered holdings of the respondents-plaintiffs and that in any
event the plaintiffs-respondents have been in undisputed possession
of the holding within well defined boundaries for nearly 40 years. The
court below noticed that in spite of specific directions, the appellants-
defendants did not produce the relevant documents relating to
puthuval decision No.81/1088 on the files of the Taluk Office,
Muvattupuzha and obviously drew adverse inference against the
appellants-defendants on account of such non-production. The
explanation offered by the appellants-defendants that the relevant file
is misplaced did not inspire confidence in the court and accordingly
the suit was decreed declaring that the plaintiffs have absolute title
and possession over the suit properties and that the defendants have
no right to evict the plaintiffs from the suit properties. It was also
declared that the defendants have no right to realise prohibitory tax
from the plaintiffs. A decree of permanent injunction was passed
against the appellants-defendants restraining eviction of the plaintiffs
and from initiating steps for realisation of prohibitory tax.
A.S.No.713/93 – 3 –
2. Raising various grounds this appeal has been preferred
seeking a reversal of the judgment under appeal and in the
alternative for granting an opportunity to the appellants to
substantiate the contentions raised by them in the written statement
filed by them along with the application under Order IX Rule 7.
3. I have heard the submissions of Mr.Basant Balaji, learned
Government Pleader for the appellants and also those of Mr.Mohan
Jacob George, counsel for respondents 3 to 6.
4. The learned Government Pleader submitted that all said and
done the decree passed by the court below was an ex parte one
which though purporting to deal with the merits of the contentions of
the plaintiffs, has been rendered without considering the contentions
raised and without granting opportunity to the appellants for
substantiating those contentions. Resisting the above submissions,
Mr.Mohan Jacob George would submit that even after the appellants
were set ex parte the respondents-plaintiffs filed commission
application as well as application for directing the appellants to
produce the documents relating to puthuval decision No.81/1088. The
Government participated in the hearing of these applications and
sought time to file counter affidavits but did not file counter and it
A.S.No.713/93 – 4 –
was accordingly that the commission application as well as application
I.A.No.54/92 were disposed of by the court below. Even now no
document has been produced by the Government which will show
that the Government will be able to substantiate the contentions
sought to be raised by them through the written statement. No useful
purpose will be served by passing an order of remand and giving the
appellants an opportunity to substantiate the so-called contentions. In
reply, the learned Government Pleader would submit that the court
below seems to have been impressed by the case of the respondents-
plaintiffs that the no proper survey of the property had been
conducted pursuant to the judgment of this court in O.P.No.79/56.
The Government Pleader would submit on the basis of the averments
in paragraph 3 of the memorandum of appeal that the land in
question was surveyed and demarcated by the plan scheme survey
during 1960 and proper boundary stones were planted and as per
that the extent of land in survey No.1063/IC of Kothamangalam
village was found to be 93 acres and 23 cents out of which 82 acres
and 26 cents was registered land while 10 acres and 97 cents
(instead of 11 acres and 65 cents) is sarkar tharisu, i.e., Government
property and cannot have been in uninterrupted possession of the
A.S.No.713/93 – 5 –
plaintiffs or the predecessors. The Government Pleader also
submitted on the basis of the very same paragraph in the appeal
memorandum that the plaintiffs were paying prohibitory tax upto
1987-88 as per L.C. case No.299/1110 which he would highlight as a
circumstance which supports the Government’s case that the
property could not have been the registered holding of the
respondents-plaintiffs.
5. Having anxiously considered the rival submissions addressed
at the Bar, I am of the view that the appellants can be afforded an
opportunity to substantiate the contentions raised by them through
the written statement. However, since it is apparent that there was
gross negligence on the part of the appellants in the matter of filing
of the written statement and also in the matter of producing
documents (which are not produced even before this court), I am not
inclined to grant such opportunity unless it be by imposing very strict
conditions. Having regard to the stakes involved and the totality of
the circumstances which attend on this case, I am of the view that a
sum of Rs.15,000/- can be fixed as the cost payable by the appellants
for getting an opportunity to substantiate the contentions.
Accordingly, the appeal will stand allowed and the judgment and
A.S.No.713/93 – 6 –
decree under appeal will stand set aside and the suit will go back to
the trial court on condition that the appellants pay a sum of
Rs.15,000/- by way of cost to the respondents. The costs can be paid
to them through their counsel appearing in this court within a period
of six weeks of receiving copy of this judgment against a memo to be
issued by the counsel. Upon such payment, the judgment and decree
under appeal will stand set aside and the suit will go back to the Sub
Court, Muvattupuzha. The court below will formulate issues for trial
within one month of getting the records back and will give just one
posting within one month thereafter for pre-trial steps and will
special list the suit for trial in the earliest available special list. In any
event, it will be ensured by the court below that the suit is tried and
finally disposed of within a period of four months of formulation of
issues for trial. The status quo as obtaining today regarding the
properties maintained by both parties will continue till the matter is
finally decided by the court below in response to this judgment. No
costs.
srd PIUS C.KURIAKOSE, JUDGE