KP John and Mathew P. Jacob v. Mani Varkey and Others

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: B. Kemal Pasha
Judgment Date: 2017-03-13
Court Decision / Holding: Dismissed. IA 444/2016 and RP Nos. 89/2016, 90/2016, and 107/2016 dismissed.
Final Disposition: Dismissed

Parties to the Case

Appellants / Petitioners

K.P.John
Mathew P.Jacob

Respondents

Mani Varkey
Varghese Ulahannan
Elias Paily
Poulose Chacko
Thomas Yohannan
Abraham Joseph
Peter Iype
Fr. Simon Chellikattill
Rev.Fr.M.V.Joseph
Rev.Fr.John Thaliacherayil
Deacon V.A.Mathew
A.T.Skaria
Pauloose Cherian
Mathai
Abraham
Elias
Jimmy
Yacob
Kurian
Paulose
Abraham Varkey
John Varkey
Mathai S. Mathew
Jacob Cherian
Fr.Skaria Vattakkattill
H.G.Dr.Mathews Mar Savarios
Fr.T.P. Elias

Legal Representation & Advocates

Counsels for Petitioners

• Sri Sreekumar (Sr.)
• Sri P. Martin Jose

Counsels for Respondents

• Sri R.D.Shenoy (Sr.)
• Sri Saji Varghese Kakkkattumattathil
• Sri Alias M.Cherian
• Sri K.J.Kuriachan
• Sri S.M.Prasanth

Case Synopsis & Summary

RP No. 89 of 2016 in RFA 524/2013 challenges a Kerala High Court order dated 3 September 2014 that condoned a delay of 2,975 days in filing a review petition. The review petitioners, K.P. John and Mathew P. Jacob, allege fraud on the court in obtaining the delay-condonation order through CM Application No. 495 of 2013, because the respondents allegedly concealed the existence of a Special Leave Petition filed before the Supreme Court and its dismissal in limine. They contend that suppressed material about the SLP would have influenced the court’s exercise of discretion in favor of condoning the delay and thus merits a recall or rehearing. The respondents resist this claim, arguing the suppression was not deliberate and that, even if the SLP dismissal were disclosed, it would not alter the outcome. They rely on Kunhayammed v State of Kerala (2000) to contend that the SLP order did not merge with the Civil Revision Petition, so the review could not be trivialized by that fact. After hearing the senior counsel for both sides, the High Court concluded that the delay was condoned on established legal principles and that the suppression did not affect the discretion exercised. Consequently, IA 444/2016 and RP Nos. 89/2016, 90/2016, and 107/2016 were dismissed by order dated 13 March 2017. It underscores that suppression of the SLP, absent merger, does not automatically vitiate the discretionary relief granted.

Legal Doctrines & Maxims

Equity and discretionary relief principles

Submissions & Arguments

Contentions of Appellants / Petitioners

Applicants contended that the delay-condonation order was obtained by fraud on the court, evidenced by suppression of the Supreme Court SLP, and that such suppression would have influenced the court’s exercise of discretion in granting condonation; they seek recall or review of the order.

Contentions of Respondents

Respondents argued suppression was not wilful or deliberate and would not have altered the outcome even if the SLP dismissal had been disclosed; relied on Kunhayammed v State of Kerala to assert that the SLP order did not merge with the CRP and thus does not nullify the review petition on grounds of suppression.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Kunhayammed and Others v. State of Kerala and Another	2000 (6) SCC 359	Mentioned Only	Cited to discuss whether suppression/SLP issues affect review; the judgment does not treat it as controlling authority or apply it to overturn the order.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE B.KEMAL PASHA** **MONDAY, THE 13TH DAY OF MARCH 2017/22ND PHALGUNA, 1938** **RP.No. 89 of 2016 () IN RFA.524/2013** **--------------------------------------** **AGAINST THE JUDGMENT IN RFA 524/2013 of HIGH COURT OF KERALA DATED 03-09-2014** ## **REVIEW PETITIONERS/APPELLANTS 1 & 2:** **------------------------------------** **1. K.P.JOHN, S/O.PAILY, KATTALIKKATTIL, MOOLAKUNNEL, PIRAVOM VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT, PIN-686 664.** **2. MATHEW P.JACOB,** **S/O.CHACKO PILLAI, PORATHICATTIL, PIRAVOM VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT-686 664.** **BY ADVS.SRI.S.SREEKUMAR (SR.) SRI.P.MARTIN JOSE** **RESPONDENTS/RESPONDENTS:** **------------------------** **1. MANI VARKEY, THOTTUPURATH, KAKKAD KARA, PIRAVOM-686 664, ERNAKULAM DISTRICT.** **2. VARGHESE ULAHANNAN, KIZHAKKEKARAYIL, PIRAVOM-686 664, ERNAKULAM DISTRICT.** **3. ELIAS PAILY, KUTTIVELIL, PIRAVOM-686 664, ERNAKULAM DISTRICT.** **4. POULOSE CHACKO, MANJAMATTATHIL, PIRAVOM-686 664, ERNAKULAM DISTRICT.** ## **RP.No. 89 of 2016 () IN RFA.524/2013** ## **--------------------------------------** **5. THOMAS YOHANNAN, THARAMATTATHIL, PAZHOOR-686 664, ERNAKULAM DISTRICT.** ## **6. ABRAHAM JOSEPH,** **THAKIDIYIL, PAZHOOR-686 664, ERNAKULAM DISTRICT.** ## **7. PETER IYPE,** - **KAKKANATTIL, PAZHOOR-686 664, ERNAKULAM DISTRICT.** ## **8. FR.SIMON CHELLIKATTIL,** - **KALAMPOOR KARA, PIRAVOM VILLAGE, MUVATTUPUZHA TALUK-686 661, ERNAKULAM DISTRICT.** ## **9. REV.FR.M.V.JOSEPH,** - **MANKIDIYIL PIRAVOM KARA, PIRAVOM VILLAGE, MUVATTUPUZHA TALUK, PIRAVOM.P.O.-686 661, ERNAKULAM DISTRICT.** **10. REV.FR.JOHN THALIACHERAYIL, VALLANAD KARA, EDAKKATTUVAYAL VILLAGE, KANAYANNUR TALUK, VELIYANAD.P.O., PIN-689 590, ERNAKULAM DISTRICT.** ## **11. DEACON V.A.MATHEW,** - **S/O.ABRAHAM, VATHAKATTIL PAZHOOR KARA, PIRAVOM VILLAGE, PIRAVOM.P.O.-686 664, ERNAKULAM DISTRICT.** **12. A.T.SKARIA, S/O.THOMAS, ANDETHU, PUTHENPURAYIL, PIRAVOM KARA, PIRAVOM VILLAGE, MUVATTUPUZHA TALUK, PIRAVOM.P.O., PIN-686 661, ERNAKULAM DISTRICT.** **13. PAULOSE K.CHERIAN, KARITHADATHIL, PIRAVOM KARA, PIRAVOM VILLAGE, MUVATTUPUZHA TALUK, PIRAVOM.P.O., PIN-686 661,** **ERNAKULAM DISTRICT.** ## **14. MATHAI,** - **S/O.ULAHANNAN, MANAPPATTU HOUSE, KAKKAD KARA, PIRAVOM VILLAGE, MUVATTUPUZHA TALUK, PIRAVOM.P.O., PIN-686 664, ERNAKULAM DISTRICT.** **RP.No. 89 of 2016 () IN RFA.524/2013 --------------------------------------** ## **15. ABRAHAM,** **S/O.MATHAI, EDAYAKKATTU HOUSE, KAKKAD KARA, PIRAVOM VILLAGE, MUVATTUPUZHA TALUK, PIRAVOM.P.O., PIN-686 664, ERNAKULAM DISTRICT.** **16. ELIAS, S/O.VARKEY, PALACKAL HOUSE, PIRAVOM VILLAGE, PIRAVOM KARA, PIRAVOM.P.O.-686 661, ERNAKULAM DISTRICT.** **17. JIMMY, S/O.VARKEY, KARAMMEL HOUSE, PIRAVOM VILLAGE, PIRAVOM KARA, PIRAVOM.P.O.-686 661, ERNAKULAM DISTRICT.** ## **18. YACOB,** **S/O.PAILY, MULLANALLUNKAL HOUSE, PIRAVOM KARA, PIRAVOM VILLAGE, MUVATTUPUZHA TALUK, PIRAVOM.P.O., PIN-686 661, ERNAKULAM DISTRICT.** ## **19. KURIAN,** **S/O.THOMMON, MANJAMATTATHIL HOUSE, PIRAVOM KARA, PIRAVOM VILLAGE, MUVATTUPUZHA TALUK, PIRAVOM.P.O., PIN-686 661, ERNAKULAM DISTRICT.** ## **20. PAULOSE,** **S/O.CHANDY, KUTTIVELI, PIRAVOM KARA, PIRAVOM VILLAGE, MUVATTUPUZHA TALUK, PIRAVOM.P.O., PIN-686 661, ERNAKULAM DISTRICT.** **21. ABRAHAM, S/O.VARKEY, VELLUKATTIL HOUSE, PIRAVOM VILLAGE, PAZHOOR-686 664, ERNAKULAM DISTRICT.** **22. JOHN** **S/O.VARKEY, PUTHIYAKUNNEL HOUSE, PIRAVOM VILLAGE, PAZHOOR-686 664, ERNAKULAM DISTRICT.** **23. MATHAI S/O.MATHEW, VETTUTHOTTATHIL HOUSE, PIRAVOM VILLAGE, PAZHOOR KARA-686 661, ERNAKULAM DISTRICT.** ## **24. JACOB,** **S/O.CHERIAN, VENGAPILLIL HOUSE, PIRAVOM VILLAGE, PIRAVOM KARA-686 661, ERNAKULAM DISTRICT.** **25. FR.SKARIA VATTAKKATTIL VATTAKKATTIL HOUSE, PIRAVOM.P.O.-686 661, ERNAKULAM DISTRICT.** **RP.No. 89 of 2016 () IN RFA.524/2013 --------------------------------------** **26. H.G.DR.MATHEWS MAR SAVARIOS** **METROPOLITAN OF KANDANADU DIOCESE, MAR PACHOMIOUS MOUNT, MEEMPARA, PUTHENCRUZ-682 308, ERNAKULAM DISTRICT.** **27. FR.T.P.ELIAS,** **AYYANETH HOUSE, MULANTHURUTHY, VICAR, ST.MARY'S ORTHODOX SYRIAN CHURCH, PIRAVOM, PIRAVOM.P.O.-686 661.** **BY ADVS. SRI.R.D.SHENOY (SR.) SRI.SAJI VARGHESE KAKKATTUMATTATHIL SRI.ALIAS M.CHERIAN SRI.K.J.KURIACHAN SRI.S.M.PRASANTH** **THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 13-03-2017, ALONG WITH RP. 664/2013, RP. 90/2016 AND RP. 107/2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **DSV/-** ## B. KEMAL PASHA, J =============================== I.A.No.444 of 2016 in R.P.No.664 of 2013 in C.R.P.No.1280 of 2004, R.P.No.89 of 2016 in R.F.A.No.524 of 2013, R.P.No.90 of 2016 in R.F.A.No.596 of 2013 & R.P.No.107 of 2016 in R.F.A.No.604 of 2013 =============================== Dated this the 13[th] day of March, 2017 ## O R D E R Heard the learned Senior Counsel for the review petitioners and the learned Senior Counsel for the respondents. 2. According to the learned Senior Counsel for the review petitioners, an order getting the delay of 2975 days condoned, through C.M.Application No.495 of 2013, was procured by the respondents by playing fraud on this Court. The argument is that, challenging the order in C.R.P.No.1280 of 2004, the respondents herein had preferred S.L.P.No.14362 of 2005 before the Apex Court. The Apex Court, vide order dated 29.07.2005, dismissed the Special Leave I.A..444/16 in R.P.664/13 in C.R.P.1280/04, R.P.89/16 & Connected cases. : 2 : Petition in limine. The order says: “The Special Leave Petition is dismissed.” Apparently, it is not a speaking order and further that it was not an order passed after granting the Special Leave. According to the learned Senior Counsel for the review petitioners, the respondents ought not to have suppressed the said fact, and the said fact was deliberately suppressed for canvassing an opinion of this Court, in exercising discretion in their favour, for condoning the said delay of 2975 days. It is also argued that the position would have been different, had the said fact been disclosed by the respondents in C.M.Application No.495 of 2013. In short, it is argued that a person, who seeks equity, must bring equity and being an equitable relief by way of discretionary relief, the suppression of the dismissal of the S.L.P. had resulted in the exercise of discretion of this Court, in favour of the respondents. 3. The learned Senior Counsel for the I.A..444/16 in R.P.664/13 in C.R.P.1280/04, R.P.89/16 & Connected cases. : 3 : respondents, based on Kunhayammed and Others v. State of Kerala and Another [2000 (6) SCC 359], argued that the suppression was not wilful or deliberate and further that it will not make any difference at all, even if the dismissal of the S.L.P. was revealed or not. According to the learned Senior Counsel for the respondents, when the S.L.P. was dismissed in limine, or even in a case, wherein the S.L.P. is kept pending without passing an order, the respondents could have moved this Court for review of the order. It has been argued that when the S.L.P. was dismissed in limine, it won't result in the merger of the order passed by this Court in the C.R.P., with the order in the S.L.P. According to the learned Senior Counsel for the respondents, the matters to be considered in an appeal and the matters to be considered in a review petition are entirely different and are not in the same zone of consideration. I.A..444/16 in R.P.664/13 in C.R.P.1280/04, R.P.89/16 & Connected cases. : 4 : 4. It is true that in C.M.Application No.495 of 2013 in R.P.No.664 of 2013, the review petitioner therein had pleaded that it was on the basis of the legal opinion obtained in the matter that there were every chances for the dismissal of the suit on other grounds, the said review petitioner had not taken further steps for filing a review petition as against order dated 17.05.2005 in C.R.P.No.1280 of 2004. 5. On a perusal of the common judgment passed by this Court, it is evident that this Court has not given any weight to the fact as to whether an S.L.P. was filed or whether an S.L.P. was dismissed in limine. Had the S.L.P. been admitted and subsequently the appeal was dismissed by the Apex Court, it could have been argued that fraud was played on this Court, in getting the order reviewed, especially when, it had effected in a merger. So long as there is no merger, and so long as this Court has the power to entertain a review petition in the I.A..444/16 in R.P.664/13 in C.R.P.1280/04, R.P.89/16 & Connected cases. : 5 : matter, the dismissal of the S.L.P. in limine is quite inconsequential. More over, this Court has not relied on the aforesaid ground pleaded by the review petitioner in R.P.No.664 of 2013 regarding the legal opinion, based on which, he had refrained from filing a review petition. When this Court had not given any weight to the said plea taken up by the said review petitioner in condoning the delay, even if it is considered that the dismissal of the S.L.P. in limine has been suppressed, it does not make any difference at all. 6. This Court had condoned the delay of 2975 days for filing R.P.No.664 of 2013 through C.M.Application No.495 of 2013, on established legal principles through several precedents of the Apex Court. When the same was done on merits and when the said suppression, even if it is admitted as suppression, has not influenced the mind of this Court in granting the discretionary relief of I.A..444/16 in R.P.664/13 in C.R.P.1280/04, R.P.89/16 & Connected cases. : 6 : condoning the delay, there is no question of any further review in the matter. Matters being so, these review petitions are only to be dismissed, and I do so. Regarding the other request for recalling the said order, the same also does not reveal any merits and therefore, the same is also dismissed. In the result, I.A.No.444 of 2016, R.P.No.89 of 2016, R.P.No.90 of 2016 and R.P.No.107 of 2016 are dismissed. Sd/- B. KEMAL PASHA, JUDGE. DSV/14/3/17 // True Copy // P.A. To Judge