IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 28TH SEPTEMBER 2010 / 6TH ASWINA 1932 RSA.No. 491 of 2010() --------------------- AS.25/2002 of ADDL. DISTRICT COURT-II, MAVELIKKARA OS.174/1996 of MUNSIFF COURT,CHENGANNUR .................... APPELLANT/APPELLANT/DEFENDANT: ---------------------------------------- SARASWATHY AMMAL, KOLLARATHINAL MUKADIYIL, PUNTHALA, ERATHU MURI, VENMONY VILLAGE. BY ADV. SRI.C.B.SREEKUMAR RESPONDENT(S)/RESPONDENT/PLAINTIFF: ------------------------- SREENARAYANA DHARMA SANGHAM TRUST GURU DHARMA PRACHARANA SABHA NO.236/84, PUNTHALA UNIT REP.BY PRESIDENT K.CHANDRAMATHI, CHANDRALAYATHIL VEEDU, PUNTHALA, ERATHU MURI, VENMONY VILLAGE. ADV. SRI.N.ASHOK KUMAR FOR R1 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 28/09/2010 ALONGWITH RSA NO.882 OF 2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ------------------------------- R.S.A.NOS.491 & 882 OF 2010 ----------------------------------- Dated this the 28th day of September, 2010 J U D G M E N T These two appeals arise from two suits separately tried in which, on the basis of materials tendered, separate judgments were rendered by the trial court. The common appellant herein was the plaintiff in one of such suits O.S.No.183 of 1995, which was one for prohibitory and mandatory injunction. She was the defendant in the other suit O.S.No.174 of 1996, which was for fixation of boundary. 2. Suit filed by the appellant as plaintiff O.S.No.183 of 1995 was against a Sakha Yogam, the defendant therein, for prohibitory and mandatory injunction was decreed in her favour. The defendant, Sakha Yogam, preferred an appeal challenging the decree as A.S.No.6 of 1999 before the Additional District Court-II, Mavelikkara. The appeal was allowed, from which, R.S.A.No.882 of 2010 has been filed. RSA.NOS.491 & 882/2010 2 3. The suit in which the appellant was defendant O.S.No.174 of 1996 was filed by a Sabha as the plaintiff, seeking for fixation of the boundary. In that suit, admittedly, the property of the appellant covered by her suit in O.S.No.183 of 1995 was included as item No.2 property to have a fixation of its boundary with that of the plaintiff in that suit, which was described as item No.1. That suit, after trial, was decreed in favour of the plaintiff therein and against the appellant. The appellant herein preferred A.S.No.25 of 2002 against the decree passed in that suit before the Additional District Court, Mavelikkara. The appeal being dismissed, she has filed R.S.A.No.491 of 2010. 4. Both the appeals were preferred with petitions to condone delay. Notices were given to the respective respondents therein, and after hearing both sides, delay in both the appeals were condoned. RSA.NOS.491 & 882/2010 3 5. When the entertainability of these appeals are considered, it is seen, the lower appellate court had disposed the two appeals preferred from separate judgments rendered in two suits, in which, the parties were also different, following an irregular procedure, which cannot be approved. The lower appellate court, it seems, on the request made by the counsel on both sides, considered the appeals as interconnected and, then, disposed them looking into the materials tendered in one case for disposal of the other case. Subsequent decree rendered in O.S.No.174 of 1996 preferred by a different person as plaintiff, who was not a party to O.S.No.183 of 1995, according to the lower appellate court, the decree granted in favour of the appellant/plaintiff in O.S.No.183 of 1995 against the defendant therein has become inexecutable. On that basis, it has considered the merit of each appeal with reference to the records of the case covered by the other appeal, as if both appeals arise from a common judgment. Parties have agreed or even requested the court to have a joint hearing of the appeals, for the reason that the disputes involved in the cases have some RSA.NOS.491 & 882/2010 4 connection, by itself, is not sufficient for the court to adapt the procedure followed in the present case by the lower appellate court. Correctness of the decrees passed in the suits, separately, in the given facts of the case, required to be examined in the appeals with reference to the materials tendered in the particular case, and not on materials tendered in the suit filed by a different person. Subject matter covered by one suit is also involved as one of the items in the other suit, in which, parties are different and reliefs canvassed are also distinct and different, should have cautioned the court that failure of justice would follow if the merit of the decree in one case is tested with reference to records in the subsequent suit. That too, when the decree rendered in the earlier suit was in fact prior to the institution of the latter suit. Overlooking all these aspects, the court below has followed a patently erroneous procedure in disposing the two appeals. 6. The judgments rendered by the lower appellate court in the respective appeal on its file, as indicated above, would RSA.NOS.491 & 882/2010 5 indicate that the appellant was represented by a counsel provided by the Legal Services Authority. It appears that the appellant was not provided with proper legal assistance in prosecuting and defending the appeals. Procedural irregularity vitiating the disposal of the appeals which, in fact, has resulted in failure of justice, being taken note the counsel on both sides conceded that setting aside the impugned judgments challenged in the respective appeals, remission of the cases to the court below directing a disposal of the appeals afresh, seperately, on merits has to be ordered. 7. The impugned judgments in both appeals are liable to be set aside with direction to the lower appellate court to dispose the respective appeals, A.S.No.6 of 1999 and A.S.No.25 of 2002, separately, with reference to the materials covered by each case in examining the propriety and correctness of a decree impugned in such appeals. The direction to consider the appeals afresh, as indicated above, would not preclude the parties to seek for reception of additional evidence subject to satisfaction RSA.NOS.491 & 882/2010 6 of the grounds envisaged under Order XLI Rule 27 of the Code of Civil Procedure for a fair decision on merits. Subject to the observations made as above, the decrees impugned in the appeals are set aside and A.S.No.6 of 1999 and A.S.No.25 of 2002 are directed to be disposed afresh taking note of the observations made above and in accordance with law as expeditiously as possible, at any rate, within a period of nine months from the date of receipt of a copy of this judgment. Both the appeals are disposed as indicated above, directing the parties to appear on 25.10.2010 before the Addl.District Court-II, Mavelikkara, which court shall hear and dispose the appeals notwithstanding any order/notification issued over the transfer/filing of the appeals to any other court. S.S.SATHEESACHANDRAN JUDGE prp