IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 12TH JULY 2010 / 21ST ASHADHA 1932 AS.No. 925 of 1997() -------------------- OS.71/1993 of SUB COURT, HOSDRUG .................... APPELLANT(S): (PLAINTIFF): -------------------------------------------- VARAPRAVAN RAGHAVAN NAIR, S/O.VARAPRAVAN LAXMI AMMA, PULLUR VILLAGE, HOSDRUG TALUK, KASARAGOD DISTRICT. BY ADVS. SRI. K.RAMACHANDRAN, SRI. S.SREEDEV. RESPONDENT(S): (DEFENDANTS 1 TO 43 AND 45 TO 57): ------------------------------------------------------------------------------------ 1. PALLAYIL CHATHU NAIR 2. V.KUMARAN NAIR 3. V.DEVAKI AMMA 4. P.PATTI AMMA 5. P.KUNHIRAMAN 6. P.SUSHEELA AMMA 7. VARAPRAVAN SURESH 8. VARAPRAVAN ANITHA 9. VARAPRAVAN THANKAM 10. VARAPRAVAN SUNILKUMAR 11. VARAPRAVAN KUNHIRAMAN NAIR 12. VARAPRAVAN ACHUTHAN NAIR 13. VARAPRAVAN KARTHIYAYANI AMMA 14. VARAPRAVAN NARAYANI AMMA Kss ..2/- ..2.... AS NO.925/1997 15. VARAPRAVAN LAXMI AMMA 16. VARAPRAVAN GOVINDAN NAIR 17. VARAPRAVAN SARASWATHI AMMA 18. VARAPRAVAN NARAYANAN NAIR 19. VARAPRAVAN RAMANI 20. VARAPRAVAN MADHAVAN 21. VARAPRAVAN NARAYANAN 22. VARAPRAVAN GEETHA 23. VARAPRAVAN RAGHAVAN 24. VARAPRAVAN BHAVANI 25. VARAPRAVAN BALAN 26. VARAPRAVAN USHA 27. VARAPRAVAN PRADEEPAN (MINOR), REPRESENTED BY HIS GUARDIAN - MOTHER 17TH RESPONDENT. 28. VARAPRAVAN KORAN NAIR 29. VARAPRAVAN KANNAN NAIR 30. VARAPRAVAN PATTI AMMA 31. VARAPRAVAN GOVINDAN NAIR 32. VARAPRAVAN JANAKI AMMA 33. VARAPRAVAN THAMBAYI AMMA 34. VARAPRAVAN DAMODARAN 35. VARAPRAVAN SAVITHRI 36. VARAPRAVAN SUMANGALA 37. VARAPRAVAN LATHA (MINOR) REPRESENTED BY HER GUARDIAN -MOTHER 33RD RESPONDENT. Kss ..3/- ...3... AS.NO.925/1997 38. PATHROTH ILLOTH VASUDEVAN NAMBOODIRI *39. VISALAKSHI AMMA ( D I E D) - LR'S RECORDED. * IT IS RECORDED THAT R39 DIED AND THAT RESPONDENT NO.40 ALREADY IN THE PARTY ARRAY IS THE LEGAL REPRESENTATIVE OF DECEASED R39 VIDE ORDER DTD. 19/05/2010. 40. R.VIDYANATHA IYER 41. PATHROTH ILLOTH MADHAVAN NAMBOODIRI 42. PATHROTH ILLOTH AGNISARMA NAMBOODIRI 43. P.RADHA 44. P.NARAYANAN NAIR 45. E.SUMATHY 46. E.KOMALAVALLY 47. CHIRUTHA 48. MADHAVI 49. DAMODARAN 50. NARAYANI 51. SUDHAKARAN 52. PRABHAKARAN 53. RATNAKARAN 54. VINODAN 55. REMA 56. USHA RESPONDENTS 1, 4 TO 6 ARE THE CHILDREN OF SREEDEVI AMMA. RESPONDENTS 2 AND 3 ARE THE CHILDREN OF VARAPRAVAN PARVATHI AMMA. RESPONDENTS 7 TO 10 ARE THE CHILDREN OF V.DEVAKI AMMA. RESPONDENTS 11 TO 18 ARE THE CHILDREN OF VARAPRAVAN LAKSHMI AMMA. RESPONDENTS 19 TO 23 ARE THE CHILDREN OF VARAPRAVAN KARTHIYAYANI AMMA. RESPONDENTS 24 TO 26 ARE THE CHILDREN OF VARAPRAVAN NARAYANI AMMA. Kss ..4/- ..4... AS.NO.925/1997 RESPONDENT NO.27 IS SON OF VARAPRAVAN SARASWATHI AMMA. RESPONDENTS 28 TO 33 ARE THE CHILDREN OF UEHIRA AMMA. RESPONDENTS 34 IS THE DAUGHTER OF PATTI AMMA. RESPONDENTS 35 TO 37 ARE THE CHILDREN OF VARAPRAVAN THAMBAYI AMMA. RESPONDENT NO.38 IS THE SON OF KESHAVANNAMBOOTHIRI. RESPONDENTS 39 AND 40 ARE THE WIFE AND SON OF RAMAKRISHNA IYER. RESPONDENTS 41 AND 42 ARE THE CHILDREN OF ILLOTH KESHAVAN NAMBOOTHIRI. RESPONDENT NO.43 IS DAUGHTER OF VARAPRAVAN NARAYANAN NAIR. RESPONDENT NO.44 IS SON OF V.KUNHAMBU. RESPONDENT NO.45 IS WIFE OF P.NARAYANAN NAIR. RESPONDENT NO.46 IS THE WIFE OF VARAPRAVAN RAGHAVAN. RESPONDENT NO.7 IS THE WIDOW AND THE RESPONDENTS 48 TO 56 ARE THE CHILDREN OF AMBHUNI. RESPONDENTS 1 TO 40, 43 AND 46 ARE RESIDING AT PULLUR VILLAGE, HOSDRUG TALUK, POST HARIPURAM, 41ST RESPONDENT IS RESIDING AT KARIVELLUR AMSOM AND DESOM, TALIPARAMBA TALUK, P.O. KARIVELLUR, 42ND RESPONDENT IS RESIDING AT KARIVELLUR AMSOM AND DESOM, TALIPARAMBA TALUK., P.O. KARIVELLUR, RESPONDENTS 44 AND 45 ARE RESIDING NEAR DURGA HIGH SHOOL, HOSDRUG, KANHANGAD, RESPONDENTS 47TO 49, 52 TO 56 ARE RESIDING AT VISHNU MANGALAM, PULLUR VILLAGE, HOSDRUG TALUK, P.O. ANANDASHRAMAM, 50TH RESPONDENT IS RESIDING AT CHANDERA IN PILICODE VILLAGE, P.O. PILICODE AND THE 51ST RESPONDENT IS RESIDING AT SHARJAH, POST BOX NO.20045, U.A.E. R1,,2,4,6,43,44 TO 46 BY ADV.SRI.T.P.ELDHOSE R14,15,17,24 TO 27 BY ADV. SRI.JOJI VARGHESE R13,19,20,21,22,23 & 31 BY ADV.SRI.D.NARENDRANATH R47 TO 56 BY SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE SMT.SUSEELA R.BHATT. THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 12/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss ORDER ON CMP.NO.6854/1997 IN AS.NO.925/1997 DISMISSED 12/07/2010 SD/- M.N.KRISHNAN, JUDGE /TRUE COPY/ P.A.TO JUDGE Kss M.N. KRISHNAN, J. ........................................... A.S.NO.925 OF 1997 ............................................. Dated this the 12th day of July, 2010. J U D G M E N T This is an appeal preferred against the judgment and decree in O.S.No.71/1993 of the Subordinate Judge's Court, Hosdurg. The suit as filed is one for a declaration that the decree and judgment in A.S.No.324/1986 on the file of the Hon'ble High Court of Kerala and confirmed in AFA.No.1/1992 are not valid and binding on the plaintiff or the plaint schedule properties etc. A.S.No.324/1986 had arisen out of the judgment and decree passed in O.S.No.95/1975 wherein the right of the plaintiff in that suit was upheld by the trial court. There was a specific plea raised by the first defendant in that suit who is D44 herein claiming tenancy right over the property. The trial court in O.S.No.95/1975 rejected the claim of the tenancy and granted a decree in favour of the plaintiff. Aggrieved by that decision, the first defendant therein (D44 herein) filed an appeal as A.S.No.324/1986 and it was allowed. Against that decision, A.F.No.1/1992 was filed by the legal representatives of the original plaintiff, other than the : 2 : A.S.NO.925 OF 1997 present plaintiff and the present plaintiff was made as supplemental R11 and this Court at the time of admission itself without issuing notice to the parties dismissed the appeal. As far as A.S.No.324/1986 is concerned, the present plaintiff was not even made a party as the legal representative of the deceased second plaintiff in O.S.No.95/1975 or in other words it is the contention of the plaintiff herein that the judgment in A.S.No.324/1986 had been pronounced without impleading him as a party and A.F.A.No.1/1992 had been disposed of at the admission stage without notice to him that too as a respondent in the appeal. So from these facts it is very clear that the verdict that had been granted in favour of the plaintiff in O.S.No.95/1975 had been nullified by the High Court in A.S.No.324/1986 and A.F.A.No.1/1992 without hearing the present plaintiff. So it is to set aside those judgments, the present suit is filed. The learned Subordinate Judge had held that the decisions in A.S.No.324/1986 and A.F.A.No.1/1992 will operate as a res judicata against the present plaintiff. 2. I am afraid that whether such a finding can be entered into especially as one relating to res judicata when : 3 : A.S.NO.925 OF 1997 the very subject matter in the suit is regarding the non binding nature of the judgment and decree passed by this Court. I am not elaborating and if there is any principle of res judicata, that can be looked into if the court finds it proper. Even the question of substantial representation etc are all matters which can be looked into by the court only when the parties let in evidence. The question of res judicata is always not a question of law, it is a mixed question of fact and law. So evidence may be necessary in cases where these questions have to be decided. 3. Therefore the finding of the trial judge that the suit is barred by res judicata has to be set aside and the matter has to be remitted back to the trial court and I direct the court below first to frame appropriate issues and then permit the parties to produce necessary documents and then evidence and consider the whole case together by answering all the issues. Parties are directed to appear before the trial court on 6.9.2010. Disposed of accordingly. M.N. KRISHNAN, JUDGE. cl : 4 : A.S.NO.925 OF 1997 M.N. KRISHNAN, J. ........................................... A.S.NO.925 OF 1997 ............................................. 12th day of July, 2010. J U D G M E N T