IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 31ST AUGUST 2011 / 9TH BHADRA 1933 CRP.No. 391 of 2011() --------------------- AGAINST THE ORDER DATED 04/07/2011 IN I.A.504/2011 IN AS.21/2009 of SUB COURT, PALA OS NO.218/2005 OF MUNSIFF COURT, KANJIRAPPALLY .................... REVN. PETITIONER(S):PETITIONER/APPELLANT ------------------------------ GOSPEL FOR ASIA,A RELIGIOUS AND CHARITABLE TRUST, MANJADI,THIRUVALLA,REPRESENTED BY THE PRESENT MANAGING TRUSTEEMETROPOLITAN BISHOP DR.K.P.YOHANNAN, AGED 60 YEARS, S/O.LATE CHACKO PUNNOOSE,BISHOP HOUSE, GFA SEMINARY CAMPUS,PUNNAKUNNAM MURI, KUTTAPUZHA VILLAGE,THIRUVALLA TALUK,REP.BY POWER OF ATTORNEY HOLDER JACOB C.PHILIP,NEDUVELIL HOUSE, NEDUNGADAPALLY MURI,KARUKACHAL VILLAGE,CHANGANACHERRY TALUK, KOTTAYAM DISTRICT, NOW RESIDING AT GENERAL MANAGER'S BUNGLOW, CHERUVALLY ESTATE, ERUMELI SOUTH P.O., ERUMELI VILLAGE, KANJIRAPPALLY. BY ADV. SRI.CHERIAN GEEVARGHESE SRI.P.HARIDAS SMT.SIKKY RAVISHANKAR RESPONDENT(S): COUNTER PETITIONERS/RESPONDENTS ---------------------------------------------- 1. G.JAYACHANDRA RAJ, AGED 50 YRS, PARAMESHWARATHU HOUSE, NEAR PANCHIKAVU TEMPLE, PERUNNA WEST, CHANGANACHERRY, KOTTAYAM DISTRICT-686102. 2. PRADEEP KUMAR, S/O. NARAYANAN NAMBOOTHIRI, AGED 35 YRS, RESIDING AT KARACKATTU ILLAM, KACKAMTHODU, CHANGANACHERRY-1, KOTTAYAM DISTRICT-686101. 3. NARAYANAN NAMBOOTHIRI, AGED 62 YEARS, RESIDING AT KARACKATTU ILLAM, KACKAMTHODU, CHANGANACHERRY-1, KOTTAYAM DISTRICT-686101. 4. BABURAJ, KRISHNAVILASAM HOUSE, ERUMELY KARA, ERUMELY SOUTH VILLAGE, KANJIRAPPALLY TALUK-686509. CRP NO.391/2011 2 5. K.JYOTHINDRANATH, RESIDING AT JYOTHIS, THRIKODITHANAM KARA, THRIKODITHANAM VILLAGE, CHANGANACHERRY TALUK, PRESIDENT, PANCHATHEERTHA PARASAKTHI DEVASTHANAM, ANCHUKUZHY, ERUMELY VILLAGE, KANJIRAPPALLY TALUK-686509. 6. DR. M.R.RAMACHANDRA MENON, ORUNKAL, KORATTY, KANJIRAPPALLY-686507. 7. SREENIVASAN, KAKKUZHIYIL HOUSE, PERUNNA KARA, CHANGANACHERRY TALUK-686102. 8. GOPAKUMAR, KUSHAKKETHIL, PAIPPADUJ VILLAGE, CHANGANACHERRY TALUK-686507. 9. KUMMANAM RAJASEKHARAN, MADHAVANIVAS, ELAMAKKARA, KOCHI, ORGANISING SECRETARY, V.H.P.-680026. 10. V.C.AJITHKUMAR, AGED 29 YEARS, S/O. CHANDRANKUTTY, VETTIKANAL, ERUMELY SOUTH VILLAGE-686509. 11. V.R.SURESH, AGED 37 YEARS, S/O. P.R.RAJAGOPAL, VRINDAVAN, CHIRAKKADAVU VILLAGE-686520. THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 31/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- C.R.P. No.391 of 2011 -------------------------------------- Dated this the 31st day of August, 2011. ORDER Petitioner filed O.S.No.218 of 2005 in the court of learned Munsiff, Kanjirappally for a decree for prohibitory injunction against respondents trespassing into the suit property, committing waste therein or making item–III, building as a place of worship or reducing it into their ownership. Item-I referred to in the plaint schedule is 26.25 acres of land lying within the boundaries mentioned therein. Item-III is described as a pump house situated on the eastern portion of item-I and by the side of ‘karithodu’ river situated on the east of item-I. A publication was also made under Rule 8 of Order I of the Code of Civil Procedure (for short, “the Code”) alleging that first respondent/first defendant is associated with Hindu religious activities and other defendants are his followers. Respondents resisted the suit on various grounds. Learned Munsiff dismissed the suit against which petitioner preferred A.S.No.21 of 2009 before learned Sub Judge, Pala. While that appeal was pending, petitioner filed I.A.No.504 of 2011 to withdraw the appeal and the suit under Rule 1(3) of Order XXIII of the Code which the learned Sub Judge disallowed by the impugned order dated July 4, 2011 holding that the affidavit does not show what all are the formal defects which enabled petitioner to seek withdrawal of the suit and the appeal. That order is under challenge. CRP No.391/2011 2 2. Learned counsel for petitioner contended that dismissal of the suit was for the reason that the power of attorney holder has no right to represent petitioner. Secondly, there was some mis-description of property in the plaint schedule. It is also contended by the learned counsel that though relief was sought in respect of a pump house, it was found that the pump house was not in existence and hence relief was not granted. In the circumstances court below ought to have allowed petitioner to withdraw the suit and the appeal as prayed for. 3. No doubt, the appellate court has also the power to allow petitioner to withdraw the suit and/or the appeal. But when the request is made in the appellate court after petitioner has received an adverse finding, appellate court must be slow in doing so. The question is whether there is any formal defect in the suit or other sufficient ground which entitled petitioner to seek withdrawal of the appeal and the suit invoking Rule 1(3) of Order XXIII of the Code.? The said provision says that whether the court is satisfied that a suit must fail by reason of some formal defect or that there are sufficient grounds for allowing the plaintiff to institute a fresh suit in respect of the matter of the suit or part of the claim, the court may on such terms as it thinks fit grant the plaintiff such permission. It has been held in various decisions that the expression ‘sufficient grounds’ in Clause (b) of Sub-rule (3) of Rule 1 of Order XXIII must be read as ejusdem generis along with the expression ‘formal defect’ appearing in Clause (a). It has also been held that a 'formal defect' is a defect in form (eg. CRP No.391/2011 3 misjoinder, non-payment of the court fee, failure to disclose cause of action). If it touches upon the merit of the case it could not be argued that the defect is formal. 4. It is true that the respondents raised a contention regarding the locus standi of the power of attorney holder to represent petitioner and so far as that issue is concerned, learned Munsiff in paragraph 12 of the judgment held that there was no power to delegate authority to represent petitioner. But, other contentions raised by the respondents as to the maintainability of the suit were found against the respondents. Trial court, notwithstanding its finding regarding the right of the power of attorney holder to file the suit proceeded to decide other issues including issues 4 and 5 which related to the question whether the suit property has been properly described and whether petitioner is in possession of the suit property. While considering those issues, learned Munsiff has referred to the contentions raised by the parties. Item-I of plaint schedule was originally stated in the plaint schedule as 20 acres on the eastern portion of a larger extent and bounded by 'karithodu' on the east. It was alleged that on 26.08.2005, respondents trespassed into plaint schedule item-I and cut open a pathway at a width of 9 feet leading to karithodu from the estate road on the west. That pathway is item-II in the plaint schedule. Petitioner alleged that respondents are still making attempts to trespass into the suit property. Respondents alleged that the suit property is in the possession of Panchathantha Parasakthi Devasthanam since the last 35 years and that CRP No.391/2011 4 people of the locality are conducting poojas there since more than 100 years. It was also contended that the structure situated in item-I (which according to the petitioner is a pump house – item-III) is not a pump house but is the office of the devasthanam. Learned Munsiff observed that though item-I was described as 20 acres forming part of 916.526 acres, later it was amended as 26.25 acres on the basis of the report of the Advocate Commissioner. The court found that the description in the report of the Advocate Commissioner did not tally with the description in Ext.A2 and that there was no proper identification of item-I. So far as item-II, pathway is concerned, (which according to the petitioner was constructed on 26.08.2005) petitioner stated that on the eastern side of the said way, a board of the temple was put up on 26.08.2005. PWs 1 and 5 claimed to have seen the said act of respondents. The trial court referred to the evidence of DW2, the Village Officer and Ext.B2, report to hold that the temple was in existence (towards east of karithodu) about 32 years back and that worshipers were using the way through the suit property to go to that temple. It was also found from the evidence of DW2 that devotees renovated the said pathway during festival in the temple, that Exts.B1 and B2 would show that the pathway was being used by the devotees from time immemorial and that predecessor of petitioner had permitted the worshipers to pass through the said way (lying through the suit property). Evidence of PWs 1 and 5 was not believed by the trial court. Trial court also observed that regarding alleged trespass and putting up of gate, etc. no independent witness was examined by the petitioner. Trial CRP No.391/2011 5 court came to the conclusion that since the presence of temple on the eastern side is admitted, there would have been some way to reach the temple and in the light of evidence of DW2 and Ext.B2, case of respondents is acceptable. The trial court further observed that though petitioner contended that respondents tried to remove the roof of item-III, the Commissioner reported that the structure described as pump house in the plaint schedule is on the bank of karithodu. At the time of hearing counsel for petitioner conceded in the trial court that petitioner is not claiming right over the pump house which is scheduled as item-III. Trial court found that there is no conclusive and satisfactory evidence of possession of petitioner over the schedule property, accordingly the issues were answered against petitioner and petitioner was non-suited. 5. I am unable to accept the argument that all the above findings are based on a formal defect and there are other sufficient grounds as understood in Clauses (a) and (b) of Sub-rule(3) of Rule 1 of Order XXIII of the Code enabling petitioner to withdraw the suit and appeal. Though learned counsel placed reliance on the decision in Prabhavathi v. Kunhathabi Umma (1981 KLT 438) I am not inclined to think that the said decision would advance the case of petitioner. If petitioner has a contention that in view of the finding regarding the right of power of attorney holder to represent petitioner, findings on other issues have become irrelevant , it is open to the petitioner to CRP No.391/2011 6 raise appropriate contention to that effect in the appellate court. There is no reason to interfere with the order under challenge. Civil Revision is dismissed. I.A.No.1984 of 2011 will stand dismissed. THOMAS P.JOSEPH, Judge. cks