IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 11TH OCTOBER 2011 / 19TH ASWINA 1933 CRP.No. 237 of 2011 --------------------------- IA 763/2010 IN RP.764/2010 IN O.S. NO.243/2004 PASSED BY THE MUNSIFF COURT, KALPETTA ............................................. REVN. PETITIONER(S): REVISION PETITIONER -------------------------------------------------------------------- HARRISONS MALAYALAM LTD, ARAPPETTA ESTATE,VYTHIRI TALUK, WAYANAD DIST REP.BY ITS MANAGER(LEGAL) M.V.H.MENON,AGED 43 YEARS, S/O.LATE K.P.BALAKRISHNAN NAIR,BRISTOW ROAD, WILLINGDON ISLAND, COCHIN-682003 BY ADVS. SRI.E.K.NANDAKUMAR SRI.A.K.JAYASANKAR NAMBIAR SRI.K.JOHN MATHAI SRI.P.BENNY THOMAS SRI.P.GOPINATH SRI.JOSON MANAVALAN RESPONDENT(S): ------------------------ 1. SUNDARAM, AGED 62 YEARS, S/O.RAMASWAY,WORKER NO-3747, NEDUMBALA DIVISION, ARAPPETTA ESTATE, MEPPADI POST, VYTHIRI TAULK, WAYANAD DIST-673577 2. SREENIVASAN, S/O.PONNAYYAN, NEDUMBALA DIVISION, ARAPPETTA ESTATE, MEPPADI POST, VYTHIRI TAULK, WAYANAD DIST-673577 3. DORAISWAMY,AGED AND FATHER'S NAME NOT KNOWN,EX-WORKER,NEDUMBALA DIVISION, ARAPPETTA ESTATE, MEPPADI POST, VYTHIRI TAULK, WAYANAD DIST-673577 4. MOHAMMED,AGED 62 YEARS, S/O.AYAMED, WORKER NO.4214, NEDUMBALA DIVISION,ARAPPETTA ESTATE, MEPPADI POST,VYTHIRI TALUK, WAYANAD DISTRICT, PIN CODE-673577 STU ...2 ..2.. 5. SULOCHANA,AGED 47 YEARS, W/O.AYYAVVOO,WORKER NO-5720 NEDUMBALA DIVISION,ARAPPETTA ESTATE, MEPPADI POST,VYTHIRI TALUK, WAYANAD DIST-673577 6. SAINABA, WORKER NO.4182, CRECHE ATTENDANT NEDUMBALA DIVISION,ARAPPETTA ESTATE, MEPPADI POST, VYTHIRI TALUK, WAYANAD DISTRICT PIN-673577 7. APPU, EX-WORKER NO-3812 NEDUMBALA DIVISION,ARAPPETTA ESTATE, MEPPADI POST, VYTHIRI TALUK, WAYANAD DISTRICT PIN-673577 8. KAMALA,WORKER NO-3874 NEDUMBALA DIVISION,ARAPPETTA ESTATE, MEPPADI POST,VYTHIRI TALUK, WAYANAD DISTRICT,PIN CODE-673577 R1 TO R8 BY ADVS. SRI.P.K.JOSE SMT.TESSY JOSE THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 11/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: STU THOMAS P JOSEPH, J. ---------------------------------------- C.R.P.No.237 of 2011 --------------------------------------- Dated this 11th day of October, 2011 ORDER This civil revision is in challenge of order dated 13.01.2011 on I.A.No.763 of 2010 in R.P.No.764 of 2010 in O.S.No.243 of 2004 of the Court of learned Munsiff, Kalpetta. That is a suit filed by petitioner for declaration of title and for injunction. Respondents/defendants, 8 in number resisted the suit on various grounds. On 05.11.2009 the suit was listed for trial but petitioner was not ready and a request for adjournment of the case was made on the ground of illness of representative of petitioner who was to give evidence. The suit was dismissed for default and petitioner was directed to pay compensatory cost of `.3,000/- each to the respondents. On 31.08.2010 petitioner filed R.P.No.764 of 2010 to review the judgment dated 05.11.2009 and filed I.A.No.763 of 2010 to condone the delay of 8 months and 13 days in filing R.P.No.764 of 2010. The application to condone delay and petition for review were opposed by the respondents. Learned Munsiff refused to condone the delay and dismissed I.A.No.763 of 2010 as per order dated 13.01.2011. Consequently, R.P.No.764 of 2010 was also dismissed. The said orders are C.R.P.No.237 of 2011 -: 2 :- under challenge. 2. Learned counsel for petitioner contends that judgment dated 05.11.2009 imposing compensatory cost on petitioner is ex facie illegal, there is no finding that the suit filed by the petitioner was false or vexatious to the knowledge of petitioner and in the circumstance, the substratum on which the award of compensatory cost rests is lost. Learned counsel has placed reliance on the decision in Augusti Vs. Joseph (1986 KLT 278) where the requirements to award compensatory cost is re-stated. That was in a revision arising from the impugned order. It is also the contention of learned counsel that at any rate, in view of sub sec.2 of Sec.35A of the Code of Civil Procedure (for short, "the Code”) learned Munsiff could not have awarded compensatory cost exceeding `.3,000/- or its pecuniary limit, whichever is less. In this case the total compensatory cost comes to `.24,000/-. 3. Learned counsel for respondents contends that though the phraseology stated in Sec.35A of the Code is not used in the judgment dated 05.11.2009, it is discernible from the observations made by the learned Munsiff that learned Munsiff was satisfied that the claim put up by petitioner was false or vexatious to its knowledge. It is also contended by learned C.R.P.No.237 of 2011 -: 3 :- counsel that the limitation prescribed by sub sec.2 of Sec.35A of the Code is concerning a defendant and not all the defendants in the suit. The further contention is that there is no scope for a review since there is no error apparent on the face of the record and if at all judgment of learned Munsiff imposing compensatory cost was wrong on facts and law, remedy was by way of appeal under Sec.104(ff) of the Code. It is also argued that there is no justifiable reason to condone the delay in filing R.P.No.764 of 2010. 4. I am presently concerned with the question whether learned Munsiff was correct in dismissing I.A.No.763 of 2010 seeking condonation of delay of 8 months and 13 days in filing R.P.No.764 of 2010. Petitioner claims to have learned about judgment dated 05.11.2009 and the direction for payment of compensatory cost only when it received a copy of the judgment on 05.08.2010. Learned Munsiff has observed that as per the endorsement on the copy of judgment produced along with R.P.No.764 of 2010 that copy was delivered to the petitioner on 31.07.2010 and hence the version that petitioner learned about the direction in the judgment only on 05.08.2010 on receiving copy of the judgment cannot be accepted. C.R.P.No.237 of 2011 -: 4 :- 5. I have been given a copy of judgment dated 05.11.2009 where it is stated that the suit was once dismissed for default on 07.11.2010 then restored to file on the application of petitioner. Again the case came for trial in the list on 05.11.2009. But witness for petitioner was absent. Learned Munsiff observed that he is satisfied that the intention of petitioner is to harass respondents who are coolie workers, which cannot be allowed. 6. True that the phraseology referred in sub sec.1 of Sec.35A of the Code is not as such reproduced in the judgment but, when learned Munsiff states that he is satisfied that intention of petitioner was to harass respondents, I am inclined to think that according to learned Munsiff he was satisfied that there was no substance in the suit laid by petitioner to be proceeded with. I must also bear in mind that if the direction in the judgment imposing compensatory cost on petitioner was wrong on point of law or facts, remedy available to the petitioner was under Sec.104(ff) of the Code. A review cannot be a substitute for an appeal. Nor am I inclined to interfere with the finding of learned Munsiff that the delay of 8 months and 13 days in filing R.P.No.764 of 2010 is not properly explained. C.R.P.No.237 of 2011 -: 5 :- 7. Yet another contention petitioner has raised is as to the pecuniary limit provided under sub sec.2 of Sec.35A of the Code. It is seen from the order under challenge that a decision was relied on by petitioner but, learned Munsiff distinguished the same and held that the said decision did not say that the limit of compensatory cost referred to in sub sec.2 of Sec.35A of the Code is concerning all the defendants. I am also inclined to think so. For, if there are several defendants as in this case it is difficult to say that the maximum amount which the learned Munsiff could award as compensatory cost is `.3,000/- to be shared by the number of defendants in the party array and in spite of the finding the suit as against all of them is vexatious. Therefore the reasonable interpretation that can be given is that the pecuniary limit referred to in sub sec.2 of Sec.35A of the Code is concerning a defendant. In the light of what I have stated I do not find merit in this civil revision. It is accordingly dismissed. (THOMAS P JOSEPH, JUDGE) Sbna/-