IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 4TH JANUARY 2011 / 14TH POUSHA 1932 RP.No. 1104 of 2010(O) ------------------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.27481/2010 Dated 28/10/2010 .................... REVIEW PETITIONERS/PETITIONERS : ------------------------------------------------------ 1. SREE VASUDEVASRAMAM, REPRESENTED BY THE SECRETARY, SREE VASUDEVASRAMAM, ARJUN HILL, NADUVATHOOR P.O., KOILANDY VIA, KEEZHARIYOOR AMSOM, NAMBRATHUKARA DESOM, KOILANDY TALUK, KOZHIKODE DISTRICT. 2. T.HEMACHANDRAN, S/O.MOOTHORAKUTTY, SECRETARY, SREE VASUDEVASRAMAM, ANTHOORA VALAPPIL, KEEZHARIYOOR AMSOM, NAMBRATHUKARA DESOM, KOILANDY TALUK, KOZHIKODE DISTRICT. BY ADVS. DR.K.P.SATHEESAN SRI.K.K.GOPINATHAN NAIR SRI.M.R.JAYAPRASAD SRI.P.MOHANDAS (ERNAKULAM) SRI.MATHEW SUNNY SRI.ANOOP.V.NAIR RESPONDENT: --------------------- ARANGIL N.GOPINATHAN, S/O.SEKHARAN, RESIDING AT NIVEDYAM, SAMBAVA COLONY, NEAR GANDHI ASRAMAM, MALAPARAMBA P.O., KOZHIKODE-673 009. THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 04/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS .P.JOSEPH, J. ---------------------------------- R.P.No. 1104/2010 in W.P.(C) No.27481/2010 --------------------------------- Dated this the 4th day of January, 2011 ORDER Review is sought on the judgment of this court dated 28.10.2010 in W.P.(c) No.27481/2010 and O.P(Civil 64/2010). On I.A.No.269/2009 in O.S.No.88/2009 learned Munsiff passed order of injunction against respondent No.2 interfering with the activities of petitioner No.2 as manager and correspondent of the school in question. Respondent No.2 took up the matter in appeal as C.M.A No.6/2010. Learned Sub Judge, Koyilandy reversed the finding of learned Munsiff as to the validity of meeting held on 08.04.2010 in which the petitioner No.2 was allegedly elected as manager of the school, allowed the Criminal Appeal and set aside the order of temporary injunction. Learned Sub Judge however directed that respondent No.2 shall not make appointment(in the school). Challenging judgment of learned Sub Judge, petitioners filed WP(C) No.27481/2010 while challenging the restriction imposed by the learned Sub Judge, respondent No.2 filed O.P. (civil) No.64/2010. This court by judgment dated 28.10.2010 R.P.No. 1104/2010 2 dismissed the W.P(C) No.27481/2010 and allowed O.P.(Civil) No.64/2010) and the restriction imposed by the learned Sub Judge on the power of appointment of respondent No.2 was removed. That judgment is sought to be reviewed by petitioners on the following grounds. 1. Approval of appointment of respondent No.2 as manager of the school by the educational authorities was provisional as seen from Annexure-2 produced along with the review petition. 2. The meeting held on 08.04.2009 was not a fresh meeting convened on a request of six members of the society including its secretary. Instead it was in continuation of the meeting held on 24.01.2009 which was convened on a request made by seven members of the society. The courts below did not consider this aspect of the matter and proceeded on the assumption that meeting held on 08.04.2009 is a fresh meeting convened on the request of six members including the secretary. This aspect of the R.P.No. 1104/2010 3 matter was not brought to the notice of this court while disposing of the Writ Petitions. 2. Learned counsel for petitioners contended that in the light of Annexure-A2, power of respondent No.2 as manager to make appointment is restricted and it is keeping that in mind that learned Sub Judge imposed restriction on the power of respondent No.2, in the matter of appointment in the school. It is also contended by learned counsel that this court did not take into account while disposing of Writ Petitions that the meeting held on 08.04.2009 was in continuation of the meeting held on 24.01.2009 which was convened by seven members of the society in compliance with clause 11 of the bye-law. 3. Learned Senior Advocate appearing for respondents contents that the review petition itself is not maintainable since the Writ Petitions were disposed of by a common judgment and hence in the absence of review petition in OP(Civil) No.64/2010, Review Petition filed in W.P.(C)No.27841/2010 alone is not maintainable. It is pointed out by the learned Senior Advocate that Annexure-A2 produced along with the Review Petition was R.P.No. 1104/2010 4 not before the learned Sub Judge and that restriction on appointment was not made pursuant to Annexure-A2. It is also argued that the Civil Court cannot pass any interim order restraining the Manager of a school from exercising his power as such, which is to be dealt with under the provisions of Kerala Education Act and the Rules. So far as the second argument raised by petitioner is concerned, it is contended by learned Senior Advocate that such a contention was not raised in any of the court below or in this Court and hence there is no scope for review on that ground. 4. No doubt, there is a technical defect in petitioner seeking review only in WP(C) No.27481/2010 while that case and O.P (Civil)No.64/2010 were disposed of by a common judgment and hence review ought to have been asked for in both the cases. Notwithstanding the technical defect, I proceed to consider the contention on merits. 5. So far as the argument based on Annexure-A2 is concerned, it is not in dispute that the said document was not before the learned Sub Judge while restriction was imposed on R.P.No. 1104/2010 5 the power of respondent No.2 in the matter of appointment as manager of the school. No such argument was also advanced before the learned Sub Judge. It is therefore, obvious that it is not pursuant to Annexure-2 that the said restriction was imposed. While disposing of the Writ Petitions, this court observed that in I.A.No.269/2009 from which the petitions arose, there was no prayer for injunction against respondent No.2 functioning as Manager or against making any appointment. The relief sought in I.A.No.269/2009 was only against respondent No.2 causing obstruction to petitioner No.2 acting as Manager. 6. Appellate court found that prima facie, election of petitioner No.2 as manager of the school in the meeting held on 08.04.2009 was in violation of clause 11 of the bye-law of the society. While considering O.P(civil) No.64/2010 this court observed that in the absence of any relief sought for in I.A.No.269/2009 against respondent No.2 functioning as manager of the school, or, to restrict his activities, learned Sub Judge was not correct in imposing restrictions. It is in that view that the restriction imposed by the learned Sub Judge was set R.P.No. 1104/2010 6 aside. That was not with reference to the power of the authorities under the Education Act or Rules to impose any restriction on respondent No.2 or based on Annexure-A2, order. This court was also not dealing with the correctness of Annexure-A2 order. In that situation, it is not necessary for this court to review the judgment whereby the restriction imposed by the learned Sub Judge on the power of appointment of respondent No.2 was taken away. I make it clear that the judgment of this court to that extent has no reference to Annexure A2 or any other provision in the Education Act or the Rules or power of the appropriate authority concerned, to restrict the power of respondent No.2 as Manager. 7. The learned Sub Judge and this court took the view that the meeting held on 08.04.2009 was not in confirmity with Rule 11 of the bye-law. The second contention raised is that the meeting held on 08.04.2009 was in continuation of the meeting convened on 24.01.2009 which was convened on a requisition made by seven members. So far as that contention is concerned, it is not in dispute that no such contention was urged R.P.No. 1104/2010 7 in any of the court and not to say, in this court. It is not shown that in spite of exercise of due diligence petitioners could not raise any such contention either in the court below or in this court. Hence, on the said contention, a review cannot be allowed as it does not come within the four corners of Rule 1 of Order 47 of the Code of Civil Procedure. I make it clear that my above finding is only to as to the scope of review requested for in this proceeding. Review Petition fails. It is dismissed. THOMAS.P.JOSEPH, JUDGE. ln