IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 20TH OCTOBER 2010 / 28TH ASWINA 1932 AS.No. 354 of 1997() ----------------------------- OS.293/1994 of PRINCIPAL SUB COURT,KOCHI .................... APPELLANT(S): DEFENDANTS -------------------------------------------- 1. PHILIP JOSSEY ALIAS JOHNSON, VALIYAVEETTIL SON OF LATE JOSEPH, H. NO.15/1651, VALIYAVEETTIL, NAZARETH, COCHIN 5. 2. ANTONY ALIAS SIMSON, SON OF LATE JOSEPH, AGED 32, RESIDING AT 15 1651, VALIAYAVEETTIL NAZARETH, COCHIN 5. BY ADV. SRI.K.C.CHARLES RESPONDENT(S): PLAINTIFF ----------------------------------------- MRS. BHANUMATHI, D/O. SESHAGIRI, RAO, AND WIFE OF VITTAPPA SHENOY, AGED 43, RESIDING AT KANAKAM, KOOVAPADOM, COCHIN 2. BY ADVS. SRI.K.N.SIVASANKARAN SRI.V.V.ASOKAN FOR THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 20/10/2010 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP. NO.3081/1997 IN AS. NO.354/1997 DISMISSED 20/10/2010 SD/- M.N.KRISHNAN, JUDGE TRUE COPY P.A. TO JUDGE tss P.BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - A.S.No. 354 of 1997 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 8th day of August, 2011 J U D G M E N T The defendants in O.S.293/1994 before the Sub Court, Kochi are the appellants. 2. The parties and facts are hereinafter referred to as they are arrayed before the trial court. 3. The suit was one for a prohibitory and mandatory injunction and for surrender of the possession of the suit property shown as C schedule to the plaintiff. According to the plaintiff, predecessor in interest of the defendant was a 'Kudikidappukaran' and was entitled to 3 to 3.5 cents. There have been litigations between the parties and their predecessor in interest previously. OS. 507/1982 before the Munsiff Court Kochi was one among them. That was filed against father of the defendant. That was a suit for mandatory injunction seeking to get unauthorised structures put up by the defendant removed. Said suit was initially dismissed. The appeal was allowed and the matter :2: A.S.No. 354 of 1997 was remanded to the trial court. After remand, Joseph the predecessor in interest passed away. Therefore the plaintiff sought for a permission to withdraw the suit with liberty to file a fresh suit by filing IA.1069/1982. 4. Subsequently the plaintiff filed OS183/1992 before the Munsiff's Court, Kochi complaining about the unauthorised constructions effected by the defendants in the suit property. After the suit was filed, a commissioner was taken out and the commissioner filed a detailed report and plan. In that report it is said that further structures have been put up by the defendants. In the said suit a written statement was filed. The plaintiff's complaint was that when the matter posted for trial without the authorization of the plaintiff, lawyer gave instructions. Later on lawyer appearing for him has filed a statement on 24.09.1993 seeking to withdraw the suit. The suit was accordingly dismissed as not pressed. The plaintiff came to know about the dismissal of the suit long time thereafter when she enquired about the suit. On coming to know about :3: A.S.No. 354 of 1997 that fact, the plaintiff send a letter to the lawyer enquiring about the withdrawal without taking instructions from her. The plaintiff would explain that she had not given any instructions to any of her lawyers either to withdraw or to report no instructions or not pressed in OS.183/1992. The said act committed by the lawyer appearing for her in the said suit was without authorisation or authority and was not binding on the plaintiff. The plaintiff has no objection for providing the extent available to the defendants as 'Kudikidappu' but they have no right to make any construction beyond the extent of property available to them. Since defendants are continuing to trespass into the property of the plaintiff other than to which they are entitled and putting up additional structures, the suit has become necessary. 5. On the basis of above allegations suit was laid. 6. The defendants resisted the suit by pointing out that suit was a method to confine the defendants to 3 to 3.5 cents where as they are entitled to a larger extent. The :4: A.S.No. 354 of 1997 relief in this suit is similar to the reliefs in OS 507/1982 and OS.183/1992. The parties were the same and the subject matters were identical. O.S.507/1982 was against the predecessor in interest of the defendants and the complaint was identical. That suit was withdrawn but no permission was granted to institute a fresh suit and therefore said judgment is a bar for the present suit. It is also pointed out that the structures about which complaints is now made were there even when the earlier suit was instituted and in the present suit also is the same subject matter is involved and is not maintainable as no permission was granted to institute a fresh suit while withdrawing OS.507/1982. According to them the extent and the other matters relating to 'Kudikidappu' have to be decided by the Land tribunal. The plaintiff cannot force that the defendants should be satisfied with 3 or 3.5 cents. Pointing out that present suit is not maintainable they prayed for dismissal of the suit. 7. On the above pleadings issues were raised. The evidence consists of the testimony of PWs 1 to 4 and Exts. :5: A.S.No. 354 of 1997 marked as A1 to A19 from the side of the plaintiff. Defendants examined DW1 and produced no documents. C1 and C1(a) are the commissioner report and plan. 8. On a consideration of the materials before it the court below came to the conclusion that there was an implied consent while granting permission to withdraw OS.503/1982 to file a new suit. It also came to the conclusion that the dismissal of OS.183/1992 was on the basis of a concession made by the counsel concerned without the authority of the plaintiff and therefore that is not binding on the plaintiff. The trial court also found that as complained by the plaintiff that the defendant had encroached into a larger area and put up constructions far in excess of the right of 'Kudikidappukaran. On the basis of above findings suit was decreed. 9. The said judgment and decree are assailed in this appeal. Two questions arise for consideration in this appeal. They are:- :6: A.S.No. 354 of 1997 (1) whether the judgment and decree in OS507/1982 and OS.183/1992 bars the present suit? (2) whether the court below is justified in decreeing the suit? 10. It is not in dispute that there was an earlier suit between the plaintiff and predecessor in interest of the defendants with regard to the same property and structures put up illegally by the predecessor in interest of the defendants. That suit as is seen from the records was initially dismissed. The matter was carried in appeal. The appeal was allowed and suit was remanded to the trial court for fresh consideration. Thereafter it appears that the predecessor in interest of the defendants passed away and the plaintiff seems to have filed Ext. A7 petition to withdraw the earlier suit ie. OS 507/1982 with permission to file a fresh suit. This petition was allowed by an order dated 03.04.1989 which is produced as Ext.A8. 11. The learned counsel appearing for the appellant raised two contentions. First one is that there was no permission granted to file a fresh suit while disposing of :7: A.S.No. 354 of 1997 OS.507/1982 and also it was contended that the subject matter in OS.507/1982 and present suit are identical and therefore present suit is barred. In support of his contentions the learned counsel relied on the decisions reported in Mary V.Annamma and Others [(2008)1KHC 762] and Bakhtawar Singh and Another V. Sada Kaur and Another [(1996)11 SCC 167]. 12. The learned counsel for the respondent pointed out that in the petition to withdraw the suit in OS.507/1982, there was a prayer seeking permission to file a fresh suit. It was that petition that was allowed. Even though the order as such may not reflect that such permission had been granted, it can be implied since that petition as such was allowed. Therefore it is contended that there is no basis for saying that present suit is barred. As far as the second contention is concerned it is pointed out that the subject matter involved are different. Subsequent to the disposal of OS.507/1982 additional structures have been put up by the contesting defendants. And therefore the subject matter :8: A.S.No. 354 of 1997 and cause of action are different. 13. In the decision reported in [Mary V. Annamma 2008(1) KHC 762] it was held as follows. If the grounds under sub-rule (3) of R.1 of O.23 are made out, the Court may permit the plaintiff to withdraw the suit with liberty to institute a fresh suit. The conditions to be satisfied are:-(a) that the suit must fail by reason of some formal defect or (b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of the suit or part of the claim. 14. It is true that a reading of Order 23 Rule 1 would indicates that unless permission is granted to institute a fresh suit while granting withdrawal of the earlier suit, it precludes a subsequent suit on the same subject matter. In the case on hand in Ext.A7, it is stated in the affidavit in support of the petition that the plaintiff in OS.507/1982 may be allowed to withdraw that suit with liberty to file a fresh suit after curing the technical defects that have crept in. It is also true that Ext.A8, the order on that petition, does not indicate as such permission has been granted to :9: A.S.No. 354 of 1997 institute a fresh suit in the same subject matter. In fact the order reads as follows. Suit for mandatory injunction. Suit against 2nd defendant already abated. Counsel for the plaintiff filed I.A.1069/1989 stating that the plaintiff may be permitted to withdraw the suit. The petition is allowed and the plaintiff is permitted to withdraw the suit. Hence the suit is disposed of as withdrawn. 15. The trial court has taken the view that petition could not have been allowed in part and that in the light of the prayer made in the petition coupled with the statement in the affidavit permission was granted to institute a fresh suit was upheld. Technically it is difficult to accept that going by the order that is extracted above. 16. This view of the lower court cannot be accepted but a second suit is barred under Order 23 Rule 1 only if it relates to the same subject matter. On a perusal of the allegation in the plaint in OS.57/1982 and the plaint in the present suit it can be seen that the subject matter are different. :10: A.S.No. 354 of 1997 17. The learned counsel appearing for the appellant contended that the structures involved in OS507/1982 are in fact the same structures involved in the present suit and ingenuine averments are made to indicate that subject matters are different. In support of this case relied on commissioners reports in the present case namely Ext.C1 and C1(a) and Exts. A4 and A5 are the commissioners report in the earlier suit. The learned counsel went on to point out that structures now complained of were there at the time of earlier suit with regard to which the reliefs were sought for. 18. The learned counsel appearing for the appellant does not appear quite correct in his submission. Comparison of the Ext.A4 and A5 and present commissioners report and plan show that additional structures have been put up by the defendants which must be subsequent to the disposal of OS.507/1982. The comparative reading of Ext. C1and C1(a) and Exts. A4 and A5 will reveal this fact. :11: A.S.No. 354 of 1997 19. Apart from the above aspects the cause of action are also different. Ext.A1 is the plaint in OS.507/1982 and the cause of action arose in 1982 and thereafter. It is true that in the said case also reliefs sought for, are for Prohibitory Injunction and for Mandatory Injunction. Mandatory Injunction has been sought for in respect of certain illegal constructions said to have been made by the defendants beyond the property to which defendants were entitled as Kudikidappu. It is significant to note that the schedule to plaint was the entire extent of property owned by the plaintiff. Perusal of Exts.A4 and A5 show that certain structures are shown in the report and plan which are said to be illegal structures made by the defendants. 20. Comparative assessment of Ext.A4 and A5 and commissioners reports C1, C1(a) will also reveal that there have been additional constructions since the disposal of OS.507/1982. Therefore even assuming that since there was no explicit permission granted to file a separate suit it could not be said that present suit relates to the same :12: A.S.No. 354 of 1997 subject matter as in the earlier suit. That would be evident from the comparison of commissioners report in the earlier suit and commissioners report in the present suit and the plaint schedule. 21. Therefore the contention based on Order 23 Rule1 has to fail. Apart from the fact that the subject matter are different, the causes of action are also different. 22. A feeble argument was however addressed with regard to OS.183/1992. The learned counsel did not seriously and quite rightly assail the claim that the said suit was got dismissed by the counsel concerned without due authority. However the learned counsel pointed out that nothing prevented the plaintiff from getting the suit restored. 23. The lower court has discussed the evidence of PWs 2 and 3 in considerable detail and comes to the conclusion that order disposing the suit was made on the basis of representation by the counsel for which they had no authority. Lower court thus found that the order in :13: A.S.No. 354 of 1997 OS.183/1992 not binding on the plaintiff. There is no error in the appreciation of the evidence in that regard and finding seems to be fully justified. 24. The evidence clearly shows that defendants have put up structures extending beyond the area to which they are entitled. The trial court has directed removal of only those structures. There is no error in that finding. 25. The findings of the court below are based on appreciation of evidence and are possible and acceptable views. Merely because a different view may be possible, is not a ground to interfere with the judgment and decree of the court below. It is not shown that the findings are either perverse or unwarranted by evidence on record. The appeal is without merits and and it is accordingly dismissed. There will be no order as to costs. P.BHAVADASAN JUDGE kkj :14: A.S.No. 354 of 1997