IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 30TH MARCH 2009 / 9TH CHAITHRA 1931 SA.NO. 613 OF 1992(F) ---------------------------------- (AGAINST A.S. NO.122 OF 1985, DISTRICT COURT, THIRUVANANTHAPURAM AGAINST O.S. NO.315 OF 1982, PRL. MUNSIFF'S COURT, NEDUMANGAD) APPELLANT(S) - APPELLANT - PLAINTIFF: ------------------------------------------------- V. JAYALEKSHMI, MANAGER, FORT HIGH SCHOOL AND RESIDING AT T.C. 41/553, NEAR HANUMAN TEMPLE, SREEVARAHAM STREET, THIRUVANANTHAPURAM (SUBSTITUTED AND AMENDED) THE NAME OF V.JAYALEKSHMI IS SUBSTITUTED AND AMENDED AS P. LAKSHMI AMMAL AS PER ORDER DATED 17.10.1994 ON C.M.1589/94 ADDITIONAL A2 IMPLEADED: ----------------------------------- SMT. S. LAKSHMI, W/O. T.V. PADMANABHAN, TC 38/269, CHENTHITTA STREET, THIRUVANANTHAPURAM. ADDITIONAL A2 IMPLEADED AS THE LR OF THE DECEASED APPELLANT VIDE ORDER DATED 28.7.2008 IN MJC 400/07 BY ADV. SRI.V.SURESH SRI.G.SUDHEER RESPONDENT(S) - RESPONDENTS - DEFENDANTS: --------------------------------------------------------------- 1. SATE OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR, THIRUVANANTHAPURAM. 2. STATE OF KERALA, REPRESENTED BY THE TAHSILDAR, THIRUVANANTHAPURAM. 3. STATE OF KERALA, REPRESENTED BY THE VILLAGE OFFICER, VANCHIYOOR, VILLAGE OFFICE, THIRUVANANTHAPURAM. 4. N. MADHAVAN PILLAI, PANSHOP, FORT HIGH SCHOOL COMPOUND, FORT, THIRUVANANTHAPURAM. 5. ARAVINDAKSHAN NAIR, RUNNING PANSHOP, OPPOSITE FORT HIGH SCHOOL, FORT, THIRUVANANTHAPURAM AND RUNNING THE PANSHOP IN THE FORT HIGH SCHOOL COMPOUND, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SHRI MATHEW GEORGE VADAKKEL SRI.DINESH R.SHENOY FOR R5 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 30/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = S.A.No.613 of 1992 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 30th day of March, 2009 J U D G M E N T ---------------------- Though various other substantial questions of law are also raised in the memorandum of second appeal, what is germane for consideration now is only whether the procedure adopted by the first appellate court in dismissing the appeal without discussing the evidence is correct and whether the first appellate court was bound to give reasons on the basis of the evidence while dismissing the appeal. 2. Property described in the plaint A schedule is 1.48 acres. Appellant claimed that the said 1.48 acres was granted to her predecessor-in-interest by the Government on lease for a period of 99 years for running a School and accordingly, her predecessor-in- interest was running the School in the said property. While so, on account of the dispute in the family which affected the administration of the School the District Collector took over the administration of the School invoking Section 14 of the Kerala Education Act (for short, “the Act”). Later, administration of the School was returned to the appellant in the year 1974 but, while doing so plaint B schedule which according to the appellant formed part of the plaint A schedule was not returned. Appellant alleged that while the District Collector S.A. No.613 of 1992 -: 2 :- was in possession and management of plaint A schedule by virtue of his power under Sec.14 of the Act, the portion shown as plaint B schedule was assigned illegally to respondent No.4 and later to respondent No.5. Appellant therefore prayed for a mandatory injunction directing the District Collector to evict respondent Nos.4 and 5 and hand over plaint B schedule property to the appellant. Respondents resisted the suit. Respondent No.5 contended that plaint B schedule is not part of plaint A schedule and that the District Collector was competent to assign that plot of land to him under the provisions of the Land Assignment Act. Learned Munsiff held that plaint B schedule did not form part of plaint A schedule and dismissed the suit. Appellant took up the matter in appeal. Learned Sub Judge dismissed the appeal observing in paragraph 7 of the judgment that the only serious contention that has been urged is that respondent No.1 had not passed an award fixing the rent of the School (situated in plaint A schedule) in accordance with the directions and guidelines laid down by the District Court in K.E.R. 1/68. Learned Sub Judge observed that the trial court has directed the first respondent to do that. On other questions urged in the appeal memorandum, learned Sub Judge observed that: S.A. No.613 of 1992 -: 3 :- “as far as the other grounds are concerned no much urge has been made before this court. The learned counsel appearing for appellant also submitted to take it as heard. He did not even argue the case. There are no other serious grounds in the appeal memorandum so as to allow the appeal. Hence I find that no interference by this court is necessitated”. Stating so appeal was dismissed. 3. It is stated in the memorandum of second appeal and learned counsel for the appellant reiterated that other grounds urged in the appeal memorandum were raised before the first appellate court but have not been considered. According to the learned counsel the judgment does not satisfy the requirements of Order XLI Rule 31 of the Code of Civil Procedure (for short, “the Code”). Learned counsel for respondent No.5 would say that the observations made by the first appellate court would show that the other contentions raised in the appeal memorandum were not urged and hence it was sufficient that the first appellate court, if it found no reason to disagree with the decision of the trial court, to generally express its agreement rather than going to the evidence in detail. It is also contended by the S.A. No.613 of 1992 -: 4 :- learned counsel that if at all the appellant has a contention that the statement in the judgment of the first appellate court that other grounds were not urged is not correct, the remedy is not by way of second appeal but by way of review of the judgment under challenge. 4. There cannot be any dispute that if any statement made by the first appellate court in its judgment as to what transpired in that court is contended to be not correct, the remedy is not by way of an appeal but to seek review of the judgment in the same court. But what is stated by the learned Sub Judge while disposing of the appeal is not that the other grounds raised in the appeal memorandum were not urged but “no much urge has been made before this Court” and further that counsel for the appellant had submitted that matter be taken as heard. That in my view does not amount to the counsel not pressing the other grounds urged in the appeal memorandum. This is also not a case where, the appeal was dismissed for default or as not pressed. Even if it was submitted on behalf of the appellant that other grounds may be taken as heard, first appellate court is bound to consider those grounds after raising necessary points for determination and arrive at proper decision stating reasons for such decision as referred to in Order XLI, Rule 31 of the Code. May be that if the first appellate court on such consideration agrees with the view S.A. No.613 of 1992 -: 5 :- taken by the trial court, it not state reasons in detail. But even then, the judgment of the first appellate court must show that it considered the points urged in the memorandum of appeal, the evidence on record and reached appropriate conclusions. On going through the judgment of the first appellate court I am not inclined to think that it satisfied the requirements of Order XLI, Rule 31 of the Code. Hence the judgment of the first appellate court is liable to be set aside. 5. Then the question arises is whether this Court while considering the second appeal can go into the contentions raised by the appellant in the memorandum of first appeal. The Apex Court in Ramavilasom Grandhasala and another v. N.S.S. Karayogam (2009 (1) ILR (Ker.) 303) stated that even when a finding entered by the first appellate court is perverse or is based on no evidence, second appellate court shall not decide the appeal on facts and the proper course is to remand the case to the first appellate court for decision. In this case as I said, the first appellate court has not entered into proper decision on the points urged in the memorandum of appeal. Therefore this Court is not justified in deciding the points urged in the memorandum of first appeal which deal with the finding of fact entered by the trial court which are carried into the memorandum of second appeal as well. Hence I am S.A. No.613 of 1992 -: 6 :- inclined to set aside the judgment and decree under challenge and remand the case to the first appellate court for fresh consideration of the points urged before it. Resultantly this second appeal is allowed by way of remand. Judgment and decree of the first appellate court are set aside. Appeal is remanded to the First Additional Sub Court, Thiruvananthapuram for fresh consideration of the points urged before it. First Additional Sub Court, Thiruvananthapuram is directed to dispose of the appeal as expeditiously as possible, at any rate within two months from the date of appearance of the parties before it. Registry is directed to send back the records to the First Additional Sub Court, Thiruvananthapuram, forthwith. No costs. Parties are directed to appear before the First Additional Sub Court, Thiruvananthapuram on 27.5.2009. Civil Miscellaneous Petition No.1455 of 2004 shall stand dismissed. THOMAS P.JOSEPH, JUDGE. vsv THOMAS P.JOSEPH, J. =================== S.A. NO.613 OF 1992 =================== J U D G M E N T 30TH MARCH, 2009