IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 25TH MARCH 2011 / 4TH CHAITHRA 1933 FAO.No. 67 of 2011() ------------------------------ AGAINST ORDER DATED 20/12/2010 IN I.A.4382/2010 IN OS.NO. 301/1992 of I ST ADDITIONAL SUB COURT, KOZHIKODE .................... APPELLANT/PETITIONER/PLAINTIFF ------------------------------------------------------- K. PRABHAKARAN, AGED 71 YEARS, S/O.SANKARANKUTTY, PUTHIYANGADI AMSOM DESOM, KOZHIKODE TALUK, KOZHIKODE. BY ADVS. SRI.N.M.MADHU SMT.C.DEVIKA RANI KAIMAL SMT.C.S.RAJANI RESPONDENT(S) RESPONDENTS/ DEFENDANTS ----------------------------------------------------------------------- 1. THE STATE OF KERALA, REP. BY THE DISTRICT COLLECTOR, KOZHIKODE, CIVIL STATION, KOZHIKODE - 20. 2. THE EXECUTIVE ENGINEER, PWD NATIONAL HIGH WAY DIVISION, CIVIL STATION, KOZHIKODE-20. R1 & R2 BY GOVERNMENT PLEADER SRI. SANAL KUMAR THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 25/03/2011, ALONG WITH FAO NO. 68 OF 2011 AND CONNECTED CASES THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts Thottathil B.Radhakrishnan & S.S.Satheesachandran, JJ. = = = = = = = = = = = = = = = = = = = = = = = = F.A.O.Nos.67, 68, 69 & 70 of 2011 = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 25th day of March, 2011. Judgment Thottathil B.Radhakrishnan, J. 1.Heard the learned counsel for the appellants and the learned Government Pleader for the respondents. 2.These appeals arise from orders passed by the court below dismissing applications to set aside decrees in four connected suits. The applications were filed before the court below on the premise that those decrees were passed ex parte since the plaintiff was not present and the Court proceeded to issue the decrees. However, while considering those applications, the court below took the view that the decrees were not passed ex parte but were rendered on merits and therefore, in terms FAOs67/2011 & con.cases -: 2 :- of Rules 2 and 3 of Order XVII of Code of Civil Procedure, they are decisions on merits and therefore, not amenable to Order IX Rule 9 of the Code. It also stated that the reasons stated for restoring the suits and the non-appearance of the plaintiff were not acceptable. Though we have indicated that the court below was also of the view that the decisions that it had issued in the form of decrees were not ex parte, the predominant approach in the impugned orders revolved on the acceptability of the plaintiff's version for his absence. 3.When these matters were considered by us, we found that there is a grave error that has occurred in the proceedings resulting in manifest injustice. As noted by the court below, the suits were taken up, following the common order of remand in A.S.651 of 1996 and connected cases issued by this Court on 17.3.2010. It appears that the plaintiff-appellant sought review of that common order of remand. In R.P.No.589 of FAOs67/2011 & con.cases -: 3 :- 2010 and connected cases, this Court took the view that the order of remand it had issued on 17.3.2010 in A.S.651/1996 was not an order of open remand and that the remand was only to consider the issues noticed by this Court in paragraph 2 of the order in R.P.No.589 of 2010 and connected review petitions. But, the Apex Court had, thereafter, entertained Special Leave Petitions against the aforesaid common order in the review petitions and ordered the trial court to also consider on merits, in accordance with law, whether there was any breach of contract in addition to the question of quantum of damages. Though the Apex Court did not interfere with the common order in the review petitions, the order passed in the Special Leave Petitions on 6.12.2010 essentially enlarged the scope of remand as contained in the orders of this Court. We find that the court below decided the suits after remand on 28th September, 2010. That was before the Apex Court issued the order noted by us above. The Apex Court having entertained SLPs FAOs67/2011 & con.cases -: 4 :- against the order on the review petitions by this Court, even if the court below happened to dispose of the suits finally before the SLPs were decided, we are of the view that judicial discipline in a hierarchy requires us to honour the verdict of the Apex Court directing that the trial court shall consider on merits, in accordance with law, whether there was any breach of contract in addition to the question of quantum of damages. Since the scope of the order of remand issued by this Court thus stood enlarged, ends of justice have to be satisfied by striking down the decrees and orders issued by the court below after remand. This has necessarily to be done only in exercise of authority under Article 227 of the Constitution. Invoking such supervisory power, we treat these FAOs as applications for relief in terms thereof and set aside the common judgment and decrees in the four suits, O.S.Nos.301, 302, 303 and 304 of 1992. As a result of this, the orders impugned in these FAOs also do not continue to hold. FAOs67/2011 & con.cases -: 5 :- Obviously, the error that we have noted had occurred because the court below was probably not apprised of the pendency of the SLPs before the Apex Court. There is no material to hold that the court below was notified of the SLPs. It was essentially for the plaintiff to state before the court below about the pendency of the SLPs. We also notice the court below's view that the suits were not prosecuted and the counsel had reported no instructions before the suits were decided. 4.In view of the conduct of the plaintiff, we direct that further proceedings will be only on the basis of the plaintiff paying to the respondents a consolidated amount of Rs.5000/-. If such payment is not made, the court below will include it as costs sufferable by the plaintiff at the termination of the litigation. Irrespective of the result of trial following this judgment, this will also form part of the decree for costs. FAOs67/2011 & con.cases -: 6 :- 5.Parties shall appear before the court below on 24.5.2011. The appeals are allowed as above. Thottathil B.Radhakrishnan, Judge. S.S.Satheesachandran, Judge. Sha/2503