IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE TUESDAY, THE 25TH NOVEMBER 2008 / 4TH AGRAHAYANA 1930 RP.No. 944 of 2007() -------------------- AGAINST THE JUDGEMENT/ORDER IN AS.673/1997 Dated 21/06/2006 OS.616/1993 of ADDL.SUB COURT,PARAVUR .................... REVIEW PETITIONER(S): PETITIONER/APPELLANTS ------------------------------------------- 1. AUGUSTINE THAMPI PILLAI, S/O KURISINGAL JACOB, PALLIPURAM KARA, PALLIPURAM VILLAGE. 2. K.J.ANTO JOSE, S/O KURISINGAL JACOB, PALLIPURAM KARA, PALLIPURAM VILLAGE. 3. SEBASTIAN JAYASEELAN, S/O KURISINGAL JACOB, PALLIPURAM KARA, PALLIPURAM VILLAGE. BY ADV. SRI.P.GEORGE WILLIAM RESPONDENT(S): RESPONDENTS -------------------------- 1. ANIE, W/O KURISINGAL JACOB, PALLIPURAM MURI, PALLIPURAM VILLAGE. (DIED) 2. JOHN MANOHAR, S/O JACOB, PALLIPURAM MURI, PALLIPURAM VILLAGE. 3. HARSHAN PILLAI, S/O JACOB, PALLIPURAM MURI, PALLIPURAM VILLAGE. 4. SUSEELA, W/O KURISINGAL SAIMON, KOVILAKATHUKADAVU, PALLIPURAM VILLAGE. 5. LEELA, W/O BASTIN, EARASSERIL VEETTIL, KOVILAKATHUKADAVU, PALLIPURAM VILLAGE. 6. JAYAMMAL, W/O ANTHONY, KALLOOKARAN VEETTIL, KOVILAKATHUKADAVU, PALLIPURAM VILLAGE. ( IT IS RECORDED THAT THE 1ST RESPONDENT DIED AND THE PETITINERS AND RESPONDENTS 2 TO 6 ARE HER LEGAL REPRESENTTIVES VIDE ORDER DATED 19/3/2008 IN MEMO DATED 18/3/2008) ADV. SRI.T.R.RAVI SRI.T.KRISHNAN UNNI, SENIOR ADVOCATE SRI.B.JAYASANKAR FOR R2 TO 5 THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 25/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS.C.KURIAKOSE J. ------------------------ R.P. No.944/2007 IN A.S.673/97 ------------------------ Dated this the 25th day of November, 2008 ORDER The appellants 1 to 3 in A.S.No.673/1997 are the petitioners in this review petition and the respondents in the appeal are the respondents. The first respondent died pending the review petition and it is recorded that he is survived by respondents 2 to 6. Parties will be referred to for the sake of convenience as appellants and respondents respectively. The appeal was filed by the appellants against the judgment and decree in O.S.No. 616/1993 of the Additional Sub Court, North Paravur, a suit filed by the respondents 1 to 3. The appellants and the respondents 4 to 6 were defendants 1 to 6 in that suit. The respondents 4 to 6 supported the plaintiffs before the trial court. The suit was contested by the appellants and they together filed written statement as well as a counter claim. The counter claim was for declaration of title and possession of defendants 1 to 3 over A. B and C schedule properties and for consequential prohibitory injunction against the plaintiffs. The R.P.No.944/2007 2 relief sought for in the counter claim were based on settlement deed No.766/1982 of Kuzhuppilly Sub Registry which was produced in the case as Ext.B11. The case of the plaintiff was that the above settlement deed was void. The Trial Court framed 9 issues of which issue Nos. 7 and 8 were with respect to the counter claim raised by defendants 1 to 3. The trial court decreed the suit and granted reliefs to the plaintiff as prayed for in the suit and declared that Ext.B11 settlement deed is void and granted injunction also in favour of the plaintiff. In the appeal which was filed before this court all the 9 issues raised by the trial court were noted for consideration. The appellants point out that while deciding the appeal this court considered point Nos. 1 to 3 and found that Ext.B11 settlement deed is not void and that the parties have taken possession of separate plots and found that the injunction granted against the defendant is totally unsustainable. This court also found that the suit was barred by limitation. Accordingly, this court allowed the appeal based on the evidence on point Nos 1 to 3 and the judgment and decree of the trial court was set aside and the suit was dismissed. The grievance of the appellants is that based on the decision of this R.P.No.944/2007 3 court on Point Nos. 7 and 8 which are actually referable to the counter claim this court should have allowed the counter claim in full. According to the appellants, the failure of this court to grant relief in the counter claim on point Nos. 7 and 8 is the result of a mistake. Since the mistake and error is apparent on the face of the record, the judgment and decree under appeal are to be reviewed to the extent of allowing the counter claim lodged by the appellants. 2. I have heard the submissions of Sri.P.George William, learned counsel for the appellants and those of Sri.B.Jayasankar learned counsel for the contesting respondents. Drawing my attention to the judgment sought to be reviewed particularly to paragraphs 7, 9, 10, 11 and 14, Sri. George William argued that in the light of the findings entered by this court on point Nos. 1 to 3 the counter claim could have been allowed without any further discussion. 3. Sri.B.Jayasankar, learned counsel for the respondents would resist the submissions of Sri.George William. The learned counsel would draw my attention to the grounds specifically raised in the memorandum of appeal submitted by the R.P.No.944/2007 4 appellants in A.S.No.673/1997. The learned counsel submitted that no specific ground had been raised in the memorandum of appeal against the dismissal of the counter claim by the trial court. The counsel drew my attention to clause 2 of Rule 1 of Order 41 and submitted that in the absence of a specific ground in the memorandum of appeal, the review petition cannot be allowed. In response to the above submission, Sri.George William would refer to Rule 2 of Order 41 and submit that clause 2 of Rule 1 of Order 41 at best, are applicable only to the appellants. The court while taking decision need not be confined to the grounds of objection raised by the appellant or the respondent to the judgment and decree against which the appeal was preferred. Sri.P.George William also referred to Rule 2 of Order 14 which obliges the court to decide all the issues settled for trial. 4. I have very anxiously considered the rival submissions. I have gone through the judgment of the trial court and also the judgment of this court in the appeal. I have also gone through the counter claim which was raised by the appellants before the trial court. I am in complete agreement with Sri. P.George R.P.No.944/2007 5 William when he submits that in the light of the findings entered by this court on point Nos. 1 to 3 this court could have decided point Nos. 7 and 8 without any further discussion. This court having repelled the contention of the plaintiff that Ext.B11 statement is void, should have granted the counter claim raised by the appellants which was for declaration of their title and possession over A, B and C schedule properties and for consequential prohibitory injunction against the plaintiff. I am not much impressed by the argument of Sri. B.Jayasankar that since the appeal memorandum submitted by the appellants had not raised a specific ground in the context of dismissal of the counter claim by the trial court this court in appeal could not have decreed the counter claim. Rule 2 of Order 41 will show that while taking decision in this appeal, the court of appeal does not have to be confined to the grounds raised in the appeal or in the memorandum of cross objection, if any which may be filed by the respondents in the appeal. Moreover, as rightly submitted by Sri. George William Rule 2 of Order 14 obliges the court to decide all the issues which were settled for trial and on which the parties adduced the evidence. R.P.No.944/2007 6 5. The result of the above discussion is that Review Petition will stand allowed. While reiterating all the findings and decisions of this court in the judgment dated 21/6/2006 issue Nos. 7 to 9 which are referred to at paragraph 5 of the judgment are answered in favour of the defendants 1 to 3 and the counter claim raised by the appellant in the suit is decreed in full. It is however made clear that this judgment allowing the review petition and decreeing the counter claim shall not prejudice to the rights of either parties in O.S. No.243/2007 presently pending trial before the Munsiff Court, North Paruvur. The Review Petition will stand allowed as above, but without any order as to costs. PIUS.C.KURIAKOSE,JUDGE dpk R.P.No.944/2007 7 PIUS.C.KURIAKOSE J. ------------------------ R.P. No.944/2007 IN A.S.673/97 ------------------------ O R D E R 25th November, 2008