IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR TUESDAY, THE 9TH DECEMBER 2008 / 18TH AGRAHAYANA 1930 RSA.No. 1245 of 2008() ---------------------- AS.121/1997 of DISTRICT COURT, KOZHIKODE OS.142/1994 of SUB COURT, QUILANDY .................... APPELLANTS/APPELLANTS 2 AND 5 IN A.S.121/1997/DEFENDANTS 2 &10 IN SUIT ----------------------------------------------------------------------------- 1. A.N. GOPINATHAN, S/O. LATE ARANGIL SEKHARAN, NAMBRAATHKARA DESOM, NADUVATHUR AMSOM, KOZHIKODE TALUK AND DISTRICT. 2. SRI.VASUDEVA ASHRAM, A SOCIETY REGISTERED UNDER THE SOCIETIES REGISTRATION ACT, REP. BY ITS GENERAL SECRETARY - A.N. GOPINATHAN, S/O. LATE ARANGIL SEKHARAN, NAMBRATHKARA DESOM, NADUVATHUR AMSOM, KOZHIKODE TALUK AND DISTRICT. BY ADV. SRI.N.SUBRAMANIAM SRI.M.S.NARAYANAN RESPONDENTS 1 TO 6/ RESPONDENT NOS. 1 TO 6 IN A.S. 121/1997/PLAINTIFFS:- ---------------------------------------------------------------- 1. P.P. VASUDEVAN, S/O. THENAN VAIDYAR, KEEZHARIYOOR AMSOM, NAMBRATHKARA DESOM, NADUVATHUR AMSOM, KOZHIKODE TALUK AND DISTRICT. 2. K. RAMACHANDRAN VAIDYAR, S/O. KUNHIKUTTY VAIDYAR, SHANAPURI HOUSE, -DO- 3. N.P. GOKULDAS, S/O. CHOYIKUTTY VAIDYAR, NADERIPOYIL HOUSE, -DO- 4. K. SATHYAPAL, S/O. CHATHU VAIDYAR, KARINGALATT HOUSE, -DO- R.S.A. No. 1245/2008 : 2: 5. M.K. BALAKRISHNAN, S/O. CHOYIKUTTY VAIDYAR, SARANG HOUSE, -DO- 6. T. HEMACHANDRAN, S/O. MOOTHORANKUTTY, AANTHOORAVALAPPIL HOUSE, -DO- RESPONDENTS 7 TO 9/RESPONDENTS 9 TO 11 IN A.S./DEFENDANTS 7, 8 & 9:- 7. K.K.S. NAMBIAR, VRINDAVAN COLONY, KOZHIKODE TALUK AND DISTRICT. 8. DR. P. RAMAN DEPARTMENT OF SKIN, GOVERNMENT MEDICAL COLLEGE, CHEVAYUR AMSOM AND DESOM, KOZHIKODE TALUK AND DISTRICT. 9. THE DISTRICT EDUCATIONAL OFFICER, VADARA AMSOM AND DESOM, KOZHIKODE TALUK AND DISTRICT. RESPONDENTS 10 & 11/APPELLANTS 3 & 4 IN A.S./DEFENDANTS 3 & 5:- 10. MS. RUGMINI A.N, D/O. ARANGIL SEKHARAN, NADUVATHUR AMSOM, KOYILANDY TALUK, KOZHIKODE DISTRICT. 11. PROF. K.M. JAYARAJ, ERANHIPALAM HOUSING SOCIETY, KOZHIKODE TALUK & DISTRICT. ADV. SRI.BIJU ABRAHAM FOR R2-6 SRI.B.G.BHASKAR FOR R6 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 09/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR , J. ========================== R.S.A. No. 1245 of 2008 ========================== Dated this the 9th day of December, 2008. JUDGMENT Defendants 2 and 10 in O.S. No. 142 of 1994 on the file of the Sub Court, Quilandy are the appellants in this Second Appeal. The said suit instituted by the respondents herein was one for a declaration that the three resolutions passed in the meetings held on 12.06.1994, 14.08.1994 and 05.09.1994 are illegal and invalid and for a perpetual injunction restraining the 2nd defendant A.N. Gopinathan from functioning as the Manager of the Ashram school and restraining the third defendant from acting as the President of a charitable society by name Sree Vasudeva Ashram. The suit was tried along with O.S. No. 28 of 1996 which was originally filed as O.S. No. 181 of 1994 before the Munsiff's Court, Quilandy and subsequently transferred to the Sub Court. O.S. No. 28 of 1996 was filed by the said Gopinathan (1st appellant herein) styling himself as the General Secretary of Sree Vasudeva Ashramam against the 1st plaintiff in O.S. No. 142 of 1994 and others for a perpetual injunction restraining the 1st R.S.A. No. 1245 of 2008 : 2: plaintiff from interfering with the management of the society and its properties. Both suits were jointly tried and O.S. No. 142 of 1994 was treated as the leading case. On 27.02.1997, the trial court decreed O.S. No. 142 of 1994 and dismissed O.S. No. 28 of 1996. Apart from decreeing O.S. No. 142 of 1994, the trial court also directed the election of the Managing Committee of the society to be conducted by appointing a Senior Advocate of that Bar as the Commissioner for conducting the election. Accordingly an election was conducted and before the newly elected office bearers could assume charge of their office, appeals were filed against the common judgment and decree as A.S. No. 121 of 1997 against the judgment and decree in O.S. No. 142 of 1994 and A.S. No. 120 of 1997 against the judgment and decree in O.S. No. 28 of 1996 and a stay also was obtained. With the result, the newly elected office bearers could not assume charge. Subsequently, on 30.09.1999, the District Court, Kozhikode disposed of the appeals by setting aside the decrees passed in both suits and remanding the case to the trial court for fresh disposal and also permitting the plaintiffs in O.S. No. 142 of 1994 to R.S.A. No. 1245 of 2008 : 3: implead the newly elected members. Against the order in A.S. No. 121 of 1997, the plaintiffs in O.S. No. 142 of 1994 filed C.M.A. No. 14 of 2000 and against the order in A.S. No. 120 of 1997, the plaintiffs in O.S. No. 142 of 1994 filed C.M.A. No. 15 of 2000. When C.M.A. No. 15 of 2000 came up for hearing, the appellants therein got the C.M. Appeal dismissed as not pressed on 22.11.2006. Subsequently, on 19.06.2007, C.M.A. No. 14 of 2000 came up for hearing before this Court and it was allowed and the lower appellate court was directed to decide A.S. No. 121 of 1997 afresh without a remand. Subsequently, as per the impugned judgment and decree dated 28.01.2008, the lower appellate court has dismissed the appeal A.S. No. 121 of 1997 confirming the decree passed by the trial court in O.S. No. 142 of 1994. It is the said judgment and decree which are assailed in this Second Appeal. 2. The following questions of law are formulated in the memorandum of Second Appeal:- 1. When a party to two connected civil proceedings from a common judgment, allows one amongst those civil proceedings to be dismissed as not pressed, is he not estopped from taking the same contentions raised in the said proceedings in the connected proceedings? R.S.A. No. 1245 of 2008 : 4: 2. When a civil proceeding is allowed to be dismissed as not pressed, is not a litigant submitting that the issues arising therefrom may be decided against him and in favour of the other person? 3. In a case where two proceedings are jointly tried and common decision is rendered and two appeals are preferred and prosecuted, but one of the appeals is withdrawn, will not the decision in that proceedings act as resjudicata, estoppel or acquiescence? 4. When two separate suits having the same subject matter and same issues are tried jointly and a common judgment is rendered, will one single appeal therefrom be maintainable? 5. when the courts below misreads and misinterprets certain documents, and renders a decision, is that decision sustainable? 6. When in a meeting some parties participate and sign in the minutes and certain decisions are taken in that meeting, can such party approbate and reprobate and can such party challenge such decisions? 7. Are the judgments and Decrees of the courts below sustainable in the facts and circumstances of the case? 3. I heard the learned counsel appearing for the appellants as well as the learned counsel appearing for the respondents who had lodged caveat in this appeal. 4. The learned counsel appearing for the appellants made the following submissions before me in support of the appeal:- The 1st plaintiff in O.S. No. 142 of 1994 by getting C.M.A. No. 15 of 2000 dismissed as not pressed, has allowed the decree dismissing O.S. No. 28 of 1996 to be set aside as was R.S.A. No. 1245 of 2008 : 5: done by the appellate court on 30.09.1999 and therefore it will operate as res judicata as against the other appeal. At any rate, it would amount to estoppel as held in Konath Mohammed Master v. Munsiff, Tirur & others - AIR 1981 Kerala 220 even if it be on account of a bona fide mistake as was held in Athanasius College Association v. State of Kerala - 1983 KLT (SN) 17. With the dismissal of C.M.A. No. 15 of 2000 as not pressed, the court below should not have proceeded with O.S. No. 142 of 1994 as the dismissal of C.M.A. No. 15 of 2000 would operate as resjudicata. 5. I am afraid that I cannot agree with the above submissions. The very same contention was raised in C.M.A No. 14 of 2000 before this Court. Dealing with the said contention, this Court observed in paragraph 6 of the order as follows:- “ It was argued that the two suits were tried jointly and a common judgment was pronounced and in view of dismissal of C.M. A No. 15/2000 the order of remand so far as it relates to O.S. No. 28/1996 has become final and conclusive and as such the findings in O.S. No. 28/1996 will operate res judicata. O.S. No. 28/1996 is a suit filed by the Ashram against four persons for an injunction restraining defendants in that suit from trespassing into the property or interfering with the administration of the day today affairs of the Ashram. That suit was dismissed by the trial curt. The lower appellate court did not consider any of the points raised in that case on its merits. It set aside the decree and judgment and R.S.A. No. 1245 of 2008 : 6: remanded the case. In C.M.A. No. 15/2000 that order of remand was challenged. On account of the dismissal of C.M. Appeal that order of remand has become final. The decree passed in O.S. No. 28/1996 was set aside. There is no finding in that suit so as to operate as res judicata.” 6. This Court having repelled the said contention while disposing of C.M.A. No. 14 of 2000, it is not open to the appellants to rake up the very same issue before this Court in the Second Appeal arising out of the revised judgment passed by the lower appellate court pursuant to the order dated 19.06.2007 passed by this Court in C.M.A. No. 14 of 2000. 7. Equally misconceived is the contention based on estoppel. There is no question of any estoppel, having regard to the parties in both suits. The decree passed in O.S. No. 28 of 1996 though set aside, has not become final and O.S. No. 28 of 1996 will have to be decided again pursuant to the remand order. No issue in O.S. No. 28 of 1996 has been finally decided so as to operate as res judicata in O.S. No. 142 of 1994. Moreover, the present contention based on estoppel might and ought to have been raised by the appellant while C.M.A. No. 14 of 2000 was disposed of. The said contention having not raised before this Court in C.M.A.No. 14 of 2000, it R.S.A. No. 1245 of 2008 : 7: is now late in the day for the appellant to assail the judgment based on estoppel. 8. On the merits of the case, the learned counsel for the appellants fairly conceded that the findings concurrently recorded by the courts below may not be assailable. It is pertinent to note that the lower appellate court has exhaustively gone into the rival contentions of the parties and has chosen to endorse the findings recorded by the trial court. In as much as the direction to conduct the election is not assailed before me, I need not go into the legality or otherwise of the said aspect particularly when the appellants who had participated in the election process and were not successful cannot now turn round and question the direction to conduct the election. Since the trial court found that the election alone could bring about a final solution to the administration of the affairs of the Ashram, that is a relief which that Court could mould in exercise of the powers under Order 7 Rule 7 C.P.C. and the same has been affirmed by the lower appellate court. I, therefore, do not find any question of law, much less, any substantial question of law arising in this Second Appeal. The R.S.A. No. 1245 of 2008 : 8: questions of law formulated in the memorandum of appeal also do not arise for consideration in this Second Appeal which is accordingly dismissed. Dated this the 9th day of December, 2008. V. RAMKUMAR, JUDGE. rv