IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 22ND JULY 2011 / 31ST ASHADHA 1933 FAO.No. 398 of 2010() --------------------- AS.297/2003 of DISTRICT COURT, THRISSUR OS.763/1999 of PRL.SUB COURT,THRISSUR .................... APPELLANTS IN FAO/RESPONDENTS 2 & 3 IN AS DEFENDANTS 2 AND 3 IN SUIT --------------------------------------------------------------------- 1. SUDHEER KUMAR, S/O.VASUDEVAN, KANATTIL HOUSE, VELLANGALLUR DESOM, VADAKKUMKARA VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. 2. BOBAN, S/O.JOSE, CHAKKALAKKAL HOUSE, PALAKKAL DESOM, PALISSERY VILLAGE, THRISSUR TALUK AND DISTRICT. BY ADV. SRI.P.B.KRISHNAN SMT.GEETHA P.MENON SRI.P.M.NEELAKANDAN SRI.P.B.SUBRAMANYAN RESPONDENTS IN FAO/APPELLANT & RESPONDENTS 1 & 4 IN AS- PLAINTIFF AND DEFENDANTS 1 AND 4 : ----------------------------------------------------------------------------------------------- 1. SAJAN, S/O.VELAYUDHAN, EDATHARA HOUSE, PEECHI VILLAGE, THRISSUR TALUK AND DISTRICT-680 653. 2. K.K.SAJEEVAN, S/O.KUTTAPPAN, KOZHIPARAMBIL HOUSE, RAISSERY DESOM, KUNNAMKULAM VILLAGE, THALAPPILLY TALUK, THRISSUR DISTRICT-680 523. 3. KRISHNADAS, S/O.RAMANKUTTY, KALLATHU HOUSE, AYYANTHOLE DESOM AND VILLAGE, THRISSUR TALUK AND DISTRICT-680 003. ADV. SRI.P.SANTHOSH (PODUVAL) FOR R3 SMT.R.RAJITHA FOR R3 SRI.N.SUBRAMANIAM FOR R1 SRI.K.NEELAKANTA MENON FOR R1 SRI.P.T.GIRIJAN FOR R1 SRI.GEORGE DANIEL FOR R1 SRI.M.S.NARAYANAN THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 22/07/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.BHAVADASAN, J. ------------------------------------- FAO No.398 of 2010 ------------------------------------- Dated this the 22nd day of July 2011 Judgment Aggrieved by the order dated 22.10.2010 in AS No.297/03 before the District Court, Thrissur, defendants 2 and 3 in the suit, who were respondents 2 and 3 before the trial court, have come up in appeal. 2. The suit OS No.763/99 was one for specific performance in which the appellants were defendants 2 and 3. The suit was laid on the basis that the plaintiff had availed of a loan of Rs.1 lakh from the 2nd respondent herein. An assignment deed was executed and it was agreed that on repayment of the amount, the above property will be re-conveyed. It so happened that the plaintiff did not pay the necessary court fee and the plaint was rejected on 01.11.2001. Two interlocutory applications were filed as IA Nos.4450 and 4494/02 on 30.10.2002, one to review the order rejecting the plaint and the other to condone the delay in filing the review petition. Both the F.A.O.398/10 2 applications were dismissed on 29.03.2003. The said order was challenged before this court and this court found that the appeal was incompetent before this court and so left open the remedy of the appellants to pursue their further remedies before the appropriate forum. 3. Thereafter, a first appeal was filed before the District Court, Thrissur as AS No.297/03 and along with that, I.A.No.1860/03 for condonation of delay was also filed. The petition was dismissed and consequently, the appeal was also dismissed. 4. The plaintiff pursued the matter by filing WP (C) No.25074/04 before this court challenging the order passed on IA No.1860/03. The said writ petition was dismissed on 18.8.2006 observing that the proper remedy of the writ petitioner was to file an appeal from the decree. In the meanwhile, it is pointed out that the plaintiff in the suit filed OS No.981/06 seeking redemption of mortgage of the property. Thereafter, the plaintiff filed RSA No.468 of 2009 before this court challenging the dismissal of AS F.A.O.398/10 3 No.297/03 by the lower appellate court. That appeal was also accompanied by CM Appl.No.353/09 seeking condonation of delay of 105 days in filing the second appeal. After condoning the delay, this court allowed the second appeal and remanded the matter to the lower appellate court to consider the matter afresh. This court while disposing of the second appeal, had taken note of the contentions raised by the respondents to the effect that several transactions are taken place after the alleged mortgage of the property. Taking note of these facts, this court while remanding the matter, observed that all these aspects may be considered by the appropriate forum at the appropriate stage. Thereafter, the lower appellate court took up the matter and AS No.297/03 was considered on merits. By the impugned order, the appeal was allowed and the plaintiff was given time till 31.11.2010 to pay the balance court fee. The learned counsel appearing for the appellants, who challenge the said order, point out that this court had clearly mentioned while remanding the F.A.O.398/10 4 matter to the lower appellate court that the contentions raised by the respondents before this court shall be considered at the time of disposing of the matter. The learned counsel further pointed out that this court had appraised of the various transactions that had subsequently taken place and no proceedings were pending before any courts. That aspect has not been considered by the lower appellate court. 5. There seems to be little merit in the above contentions. This court permitted the respondents in the second appeal to raise all their contentions before the appropriate forum at the appropriate stage. One needs to notice that the plaint was rejected and the subsequent proceedings also. All that the lower appellate court has done is to direct the trial court to take back the suit to file on payment of the balance court fee by the plaintiff on or before 30.11.2010. The defendants are yet to file the written statement. In the light of the observations made by this court, it is made clear that the defendants will be at F.A.O.398/10 5 liberty to raise all their contentions. The lower appellate court had only asked the trial court to take the suit back to file and it has not shut down the contentions of the appellants. Suffice is to say that in the light of the order made by this court, while remanding the matter to the lower appellate court, the liberty given to the respondents to urge all their contentions will be available to them when they file a written statement and the trial court shall consider those contentions in accordance with law. If the defendants have already filed a statement, they will be free to file an additional statement incorporating additional contentions if any, and that will also be considered by the trial court in accordance with law. Subject to the above observations, this appeal is dismissed. No order as to costs. P.Bhavadasan, Judge sta F.A.O.398/10 6 F.A.O.398/10 7