Jacob Babu, Lissy Jacob and Jose U. Padathara v. Gogi Jaison Padathara and others

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR MONDAY, THE 1ST FEBRUARY 2010 / 12TH MAGHA 1931 WP(C).No. 2762 of 2010(O) ## ------------------------- OS.358/2009 of ADDL.M.C.,KOTTAYAM .................... ## PETITIONER(S): ## 1. JACOB BABU, VETTAVALLIL HOUSE, ERAVINALLOOR KARA, PUTHUPPALLY VILLAGE, KOTTAYAM DISTRICT. ## 2. LISSY JACOB, VETTAVALLIL HOUSE, ERAVINALLOOR KARA, PUTHUPPALLY VILLAGE, KOTTAYAM DISTRICT. ## 3. JOSE.U.PADATHARA, PADATHARA HOUSE, MANARCADU P.O., KOTTAYAM- 686019. BY ADV. SRI.V.P.SUKUMAR SRI.BEJOY CHERIYAN ## RESPONDENT(S): ## 1. GOGI JAISON PADATHARA, PADATHARA HOUSE, THAZHATHANGADI P.O., KOTTAYAM. ## 2. GINU JAISON, PADATHARA HOUSE, THAZHATHANGADI P.O., KOTTAYAM. ## 3. GITHU JISON, PADATHARA HOUSE, THAZHATHANGADI P.O., KOTTAYAM. ## 4. BABU THOMAS, PALAKUZHIYIL HOUSE, NATTAKOM P.O., KOTTAYAM. **W.P.(C) No.2762/10** **2** ## 5. ANNAMMA JOSEPH, PADATHARA HOUSE, THAZHATHANGADI P.O., KOTTAYAM. ## 6. SUNNY THOMAS, VAZHEEPARAMBIL HOUSE, PUTHENCHANTHA P.O., VAKATHANAM, KOTTAYAM. ## 7. THE SECRETARY, - ST.GEORGE CHARITABLE SOCIETY, REG. NO.K-52, THAZHATHANGADI, KOTTAYAM. 8. THE DISTRICT REGISTRAR GENERAL, KOTTAYAM. ## 9. THE SECRETARY, KERALA KHADI & VILLAGE INDUSTRIES BOARD, VANCHIYOOR, THIRUVANANTHAPURAM. 10. THE PROJECT OFFICER, KERALA KHADI & VILLAGE INDUSTRIES BOARD, CHELLIYOZHUKKAM ROAD, KOTTAYAM-1. 11. STATE OF KERALA, REPRESENTED BY ITS DISTRICT COLLECTOR, KOTTAYAM. 12. THE DEPUTY THASILDAR(RR), KOTTAYAM. 13. THE VILLAGE OFFICER, VILLAGE OFFICE, PUTHUPPALLY, KOTTAYAM. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **V. RAMKUMAR, J.** **= = = = = = = = = = = = =** ## **W.P.(c).No.2762 of 2010** **= = = = = = = = = = = = = = Dated this the 1st day of February, 2010** ## **JUDGMENT** The petitioners are the plaintiffs in O.S.No.358/2009 on the file of the Munsiff's Court-II, Kottayam. The said suit is for a declaration that the plaintiffs are not the members of the 7[th] defendant Society by name St.George Charitable Society, Thazhathangadi, Kottayam and for a perpetual injunction restraining the defendants who are, inter alia, State of Kerala, Deputy Thasildar (RR), Kottayam, Village Officer, Puthuppally, Kottayam etc. from attaching and selling item Nos.1 to 4 of the plaint schedule property. 2. To prove their contention that they are not the members of the 7[th] defendant society, the petitioners filed an application as I.A.No.2972 of 2009 requesting the court below to send the disputed documents namely Hypothecation deeds of the year 1985 and 1982, terms and **W.P.(c)No.2762 of 2010** **2** conditions of re-loaning, memorandum regarding deposit of title deeds dated 19.3.1982 etc. to the handwriting expert for comparison with their specimen signatures to be taken from the court and their signatures in the vakalath etc. Initially as per Ext.P4 order dated 8.12.2009, the learned Munsiff dismissed the application holding that the documents relied on for the purpose of comparison were not contemporaneous documents which alone could be compared with the questioned documents. Thereafter, the petitioners filed Ext.P5 application wherein one of the documents requested to be compared was a surety bond of the year 1982. The said application was registered as I.A.No. 3444/2009. The petitioners also filed I.A.No.3443 of 2009 to advance Ext.P6 application. As per Ext.P8 order dated 19.12.2009, the court below closed the petition to advance I.A.No.3444/2009 presumably for the reason that the suit itself stands listed for trial to 6.2.2010. 3. The learned counsel for respondent Nos.9 & 10 **W.P.(c)No.2762 of 2010** **3** namely the Secretary, Kerala Khadi & Village Industries Board and the Project Officer made the following submissions before me in support of Ext.P8 order and the refusal to send the questioned documents to the handwriting expert:- Under Section 29A of the Kerala Khadi Board Act , if any amount due to the Board in accordance with the terms of the contract or otherwise or any sum payable in connection therewith, has not been paid, such amount or sum shall, without prejudice to any other remedy provided by law, be recoverable as if it is arrears of land revenue due under the Revenue Recovery Act for the time being in force. The Board having sent a certificate to the District Collector to recover the amount due from the petitioners under the Kerala Revenue Recovery Act, the remedy, if any, of the petitioners is to move the Collector under Section 34(2) of the Kerala Revenue Recovery Act. After deletion of the word “fraud” under Section 72 of the **W.P.(c)No.2762 of 2010** **4** Act, no suit will lie in view of the ouster of jurisdiction under Section 72 of the Revenue Recovery Act. 4. It is admitted by the learned counsel for respondent Nos.9 and 10 that there is no adjudication of the liability envisaged under the Kerala Khadi Board Act and therefore for the amount due the Board need only send a requisition to the Collector. The case of the petitioners is that they are not members of the 7[th] defendant Society and the documents purportedly evidencing their membership are forged documents. Having regard to the scope of adjudication, if any, by the District Collector under Section 34(2) of the Revenue Recovery Act, it may not be within the ken of the District Collector to decide whether the petitioners are members of the 7[th] defendant Society by conducting an enquiry after sending the disputed documents to the handwriting expert for comparison with the admitted documents. 5. As for the contention that there is an ouster of the jurisdiction of the Civil Court under Section 72 of the Kerala **W.P.(c)No.2762 of 2010** **5** Revenue Recovery Act, it is sufficient for me to refer to the following observations in **Chinnaswamy v State of Kerala** (2009(2) KLT 525) “Proviso to S.72 only saved a suit in respect of the question referred to in the earlier part of that Section which is otherwise required to be decided by the Board of Revenue or the Collector, provided such suit is brought on allegation of fraud. In this case the relief of injunction sought against recovery of the amount stated in the demand notice issued under the Act is consequential to the declaration the appellant has prayed for, that he is not liable to pay any amount as he has already returned the materials to respondent No.3 and any amount is due from the appellant to respondent Nos.1 to 3 and whether appellant is entitled to the declaration and consequential reliefs are not matters required to be decided by the Board of Revenue or the Collector under any of the provisions of the Act. Those questions are required to be decided by a suit. If the court decides those questions in favour of the appellant, he is entitled to the consequential relief of injunction against recovery of the amount, be it under the provisions of the Act or any other mode available to the **W.P.(c)No.2762 of 2010** **6** respondents. A suit for a declaration of the nature prayed for and a consequential injunction is one of a civil nature triable by the civil court. That jurisdiction is not expressly or impliedly barred by the provisions of the Act. In that view S.72 of the Act has no application to the facts of this case. Learned Sub Judge was not correct in holding that the suit is not maintainable for want of sufficient pleadings as to fraud to bring the suit within the scope of the proviso to S.72 of the Act. I hold that the suit is maintainable in the civil court. 6. It is true that the suit of the year 2007 has been listed for trial. But then, if the petitioners' contention that they have never been members of the 7[th] defendant Society at any point of time and documents evidencing their membership are forged documents is true, then they have no forum to except the Civil court. Such being the position, a comparison of signatures in the disputed documents with the admitted signatures may be necessary to decide the main dispute in the suit and the court below was not justified in closing the petition to advance Ext.P6 **W.P.(c)No.2762 of 2010** **7** application merely for the reason that the suit stands listed for trial. Ext.P8 order is accordingly quashed and Ext.P6 application namely I.A.No.3444 of 2009 shall stand allowed and the questioned documents shall be referred to the Forensic Science Laboratory, Hyderabad at the expense of the petitioners along with the admitted documents and if necessary, after taking the signatures and writings of the petitioners for whatever they are worth. If ultimately the court finds that the questioned documents were executed by the petitioners, then they will be liable not only for the amounts covered by the revenue recovery proceedings for but also such other amounts which the Board will be entitled to recover, by way of additional compensation and the petitioners will not then be entitled to question the authority of the Board to recover the same. ## **This writ petition is disposed of as above.** **Dated this the 1[st ] day of February, 2010.** ## **V. RAMKUMAR, JUDGE** sj