High Court of KeralaSingle Judge2023-10-04Appeals dismissed; OP(C) No.4095/2011 dismissed.

Pattanakkad Grama Panchayat v Geetha D/o Padmakumari; Vaijayanthi Mohandas

Case / Petition Number:FAO No. 63/2012

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Basant Balaji
Judgment Date: 2023-10-04
Court Decision / Holding: Appeals dismissed; OP(C) No.4095/2011 also dismissed.
Final Disposition: Appeals dismissed; OP(C) No.4095/2011 dismissed.

Parties to the Case

Appellants / Petitioners

Pattanakkad Grama Panchayat represented by the Secretary

Respondents

Geetha D/O Padmakumari, Chillathu Veettill, Kadakkarappally Muri, Kadakkarappally Village-688 531
Vaijayanthi Mohandas W/O Mohandas, Puthenveettil, Kadakkarappally Muri, Pattanakkad Village-688 531

Legal Representation & Advocates

Counsels for Petitioners

• Dr. V.N. Sankarjee
• Sri. V.N. Madhusudanan

Counsels for Respondents

• Sri J. Om Prakash

Case Synopsis & Summary

These consolidated appeals arise from a suit filed by Geetha D/o Padmakumari and Vaijayanthi Mohandas against Pattanakkad Grama Panchayat seeking a mandatory injunction and damages. The trial court decreed a mandatory injunction on 05.10.2000 and awarded Rs 10,000 as damages. The Panchayat challenged the decree in AS No. 30/2001; the appeal was dismissed for default on 19.01.2009. On 17.02.2009 the Panchayat filed I.A. No. 299/2009 under Order 41 Rule 19 CPC seeking readmission of the appeal. The First Appellate Court, by order dated 20.05.2010, dismissed the petition, holding that the affidavit accompanying the IA was filed by a counsel without authority to depose and that the party had sought 35 adjournments, indicating lack of bonafides. Thereafter I.A. No. 586/2010 was filed for readmission, and I.A. No. 371/2011 under Order 1 Rule 10(2), Order 6 Rule 17 and Section 151 CPC to amend the cause title, both of which were dismissed. The appellant argued that the affidavit by counsel was legally maintainable, citing Abdul Kareem v. State of Kerala; the respondents urged that the decree had been partially executed and that remitting the damages portion to merits would be futile. The High Court, after considering the record, held that the appeals had no merit since the decree’s mandatory portion had been executed and the remaining Rs 10,000 damages could not salvage a meritorious result, and accordingly dismissed FAO Nos. 364/2011, 63/2012 and OP(C) No. 4095/2011.

Provisions of Law Cited

Order 41 Rule 19 of CPCSection 151 CPCOrder 1 Rule 10(2) CPCOrder 6 Rule 17 CPC

Submissions & Arguments

Contentions of Appellants / Petitioners

The applicant contends that the application for readmission of the appeal under Order 41 Rule 19 CPC was maintainable, as the affidavit accompanying IA 299/2009 was filed at the instance of the counsel and the adjournments were sought in a bona fide attempt to prepare the case; reliance was placed on Abdul Kareem v. State of Kerala to support the maintainability of counsel affidavits, and the Panchayat sought an opportunity to contest the merits of the appeal. It is urged that readmission should not be refused on technical grounds and that the court should allow the matter to be heard on merits. The petition seeking substitution of the party in the title (IA 371/2011) and related IA 586/2010 were pressed as necessary to rectify proceedings and should be considered on merits.

Contentions of Respondents

The respondents submit that the decree has been partly executed, with only damages of Rs. 10,000 to be paid; the appeal was rightly dismissed for lack of bonafides in seeking adjournments and in filing the IA with an unauthorised deponent. They contend that readmission petitions were not pressed with sufficient bonafide and the earlier orders dismissing IA 299/2009, IA 586/2010 and IA 371/2011 should be upheld. They argue that remanding for merits would be futile since the mandatory injunction has already been executed and the damages portion would not salvage a meritorious outcome.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Abdul Kareem v. State of Kerala	2006 (2) KLT 408	Positive	The court cites Abdul Kareem to support that an affidavit by counsel for readmission can be maintainable; it clarifies that the decision in Abdul Kareem acknowledges the possibility of counsel filing such affidavits.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE BASANT BALAJI`** ``` WEDNESDAY, THE 4[TH] DAY OF OCTOBER 2023 / 12TH ASWINA, 1945 ``` ## **`FAO NO. 63 OF 2012`** ``` AGAINST THE ORDER DATED 20.05.2010 IN I.A NO.299/2009 IN AS ``` ``` 30/2001 OF THE SUB COURT, CHERTHALA ``` ## **`APPELLANT(1ST PETITIONER/APPELLANT IN THE COURT BELOW):`** ``` PATTANAKKAD GRAMA PANCHAYAT REPRESENTED BY THE SECRETARY. BY ADVS. DR.V.N.SANKARJEE SRI.V.N.MADHUSUDANAN ``` ## **`RESPONDENTS(COUNTER PETITIONERS/RESPONDENTS IN THE COURT BELOW):`** - `1 GEETHA D/O.PADMAKUMARI,CHILLATHU VEETTIL,KADAKKARAPPALLYMURI, KADAKKARAPPALLY VILLAGE-688 531.` - `2 VAIJAYANTHI MOHANDAS W/O.MOHANDAS,PUTHENVEETTIL,KADAKKARAPPALLY MURI,PATTANAKKAD VILLAGE-688 531.` ``` BY ADV SRI.J.OM PRAKASH ``` ``` THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 04.10.2023, ALONG WITH FAO.364/2011 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` FAO Nos.364/2011, 63/2012, OP(C) No.4095/2011 -2- # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE BASANT BALAJI ``` ``` WEDNESDAY, THE 4[TH] DAY OF OCTOBER 2023 / 12TH ASWINA, 1945 FAO NO. 364 OF 2011 ``` ``` AGAINST THE ORDER DATED 05.08.2011 IN IA NO.586/2010 IN AS ``` ``` 30/2001 OF SUB COURT, CHERTHALA ``` ## **`APPELLANT(PETITIONER/APPELLANT IN THE COURT BELOW):`** ``` PATTANAKKAD GRAMA PANCHAYATH REPRESENTED BY THE SECRETARY. BY ADV DR.V.N.SANKARJEE ``` ## **`RESPONDENTS(COUNTER PETITIONERS/RESPONDENTS IN THE COURT BELOW):`** - `1 GEETHA D/O.PADMAKUMARI, CHILLATHU VEETTIL,KADAKKARAPPALLY MURI, KADAKKARAPALLY VILLAGE 688 529.` - `2 KRISHNAPPAN S/O.PAPPAN, VALLAMPARAMBIL, KADAKKARAPPALLY MURI,PATTANAKKAD VILLAGE 688 529.` - `3 VAIJAYANTHI MOHANDAS W/O.MOHANDAS, PUTHENVEETTIL, KADAKKARAPPALLY MURI,PATTANAKKAD VILLAGE 688 529. BY ADV SRI.J.OM PRAKASH` ``` THIS FAO 364 OF 2011 HAVING COME UP FOR ADMISSION ON 04.10.2023, ALONG WITH FAO.63/2012, OP(C) NO.4095/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` FAO Nos.364/2011, 63/2012, OP(C) No.4095/2011 -3- # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE BASANT BALAJI ``` ``` WEDNESDAY, THE 4[TH] DAY OF OCTOBER 2023 / 12TH ASWINA, 1945 OP(C) NO. 4095 OF 2011 ``` ``` AGAINST THE ORDER DATED 05.08.2011 IN IA NO.371/2011 IN AS ``` ``` 30/2001 OF SUB COURT, CHERTHALA ``` ## **`PETITIONER(PETITIONER/APPELLANT IN THE COURT BELOW):`** ``` PATTANAKKAD GRAMA PANCHAYAT BY THE SECRETARY. ``` ``` BY ADV DR.V.N.SANKARJEE ``` ## **`RESPONDENTS/(COUNTER PETITIONERS/RESPONDENTS IN THE COURT BELOW):`** - `1 GEETHA KADAKKARAPPALLY MURI,KADAKKARAPPALLY VILLAGE,, PIN-688529.` - `2 KRISHNAPPAN, S/O.PAPPAN, VALLAMPARAMBIL KADAKKARAPPALLY MURI,PATTANAKKAD VILLAGE,, PIN-688529.` - `3 VAIJAYANTHI MOHANDAS, W/O.MOHANDAS PUTHENVEETTIL,KADAKKARAPPALLY MURI,, PATTANAKKAD VILLAGE-688529.` - `4 PRESIDENT, PATTANAKKAD GRAMA PANCHAYATH PIN-688529.` ``` BY ADV SRI.J.OM PRAKASH ``` THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 04.10.2023, ALONG WITH FAO.364/2011 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: FAO Nos.364/2011, 63/2012, OP(C) No.4095/2011 -4- ## JUDGMENT (Dated this the 4[th] day of October 2023) [FAO Nos.63/2012, 364/2011, OP(C) No.4095/2011] FAO No.63/2012 is filed against the order dated 20.05.2010 in I.A No. 299/2009 in AS No.30/2001 on the file of the Sub Court, Cherthala. FAO No.364/2011 is filed against the order dated 05.08.2011 in I.A No.586/2010 and OP(C) No.4095/2011 is filed challenging the order in IA No.371/2011. Since the appellants and respondents are common and the issue is also the same, FAO Nos.364/2011, 63/2012, OP(C) No.4095/2011 are heard together, and a common judgment is passed. The parties are referred to as they are arrayed in FAO No.63/2012. 2. The Pattanakkad Grama Panchayat, represented by the Secretary, is the appellant. The respondents were the FAO Nos.364/2011, 63/2012, OP(C) No.4095/2011 **==> picture [16 x 9] intentionally omitted <==** counter petitioners therein. 3. The suit was filed for a decree of mandatory injunction against the appellant, directing them to pay damages to the tune of Rs.10,000/-. The suit was decreed on 05.10.2000, granting a mandatory injunction against the appellant and directing payment of Rs.10,000/- to the plaintiffs. Aggrieved by the judgment and decree, the Panchayat filed AS No.30/2001. On 19.01.2009, the appeal was dismissed for default. 4. The Panchayat filed I.A No.299/2009 under Order 41 Rule 19 of the CPC for readmitting the appeal on 17.02.2009. The First Appellate Court, by order dated 20.05.2010, dismissed the petition, stating two reasons, one is, that the affidavit accompanying the I.A is filed by the counsel who has no FAO Nos.364/2011, 63/2012, OP(C) No.4095/2011 **==> picture [16 x 9] intentionally omitted <==** authority to depose the facts on behalf of the party; secondly, the petitioner has obtained 35 adjournments for hearing of the appeal, and the conduct indicates that the petition is filed without any bonafides. Thereafter, I.A No.586/2010 was filed under Order 41 Rule 19 and Section 151 of the CPC for readmitting the appeal. It is to be noted that the said IA was filed without challenging an earlier order passed in IA No.299/2009 dated 20.05.2010. I.A No.371/2011 is a petition under Order 1 Rule 10(2), and Order 6 Rule 17 and Section 151 of CPC for amending the cause title as the IA was filed with the president impleaded in his personal capacity, and since it was a bonafide mistake, the petitioner prayed for substituting the second respondent. The First Appellate Court, jointly heard I.A Nos.586/2010 and 371/2011 and, dismissed both the petitions. FAO Nos.364/2011, 63/2012, OP(C) No.4095/2011 **==> picture [16 x 9] intentionally omitted <==** 5. The counsel for the appellant submits that the application for re-admitting the appeal was filed with the affidavit of the counsel for the appellant, as it was at his instance, the adjournment was sought, since he was not ready with the matter. Therefore, the application filed with the affidavit of the Advocate is perfectly maintainable, and the Court had dismissed the case without adverting to the legal position as declared by this Court in Abdul Kareem v. State of Kerala[1] 6. The counsel for the respondents submitted that the decree which the Trial Court granted has been executed and mandatory injunction is already executed and, and what remains is the execution of Rs.10,000/- as damages. 7. The counsel for the appellant prays that the > 1 2006 (2) KLT 408 FAO Nos.364/2011, 63/2012, OP(C) No.4095/2011 **==> picture [16 x 9] intentionally omitted <==** Panchayat may be given an opportunity to contest the appeal on merits. 8. On reading of the order dated 20.05.2010 in I.A No.299/2009, it can be seen that the appellant/petitioner had sought for 35 adjournments for hearing the case, and on the day when it was called for hearing, the counsel for the appellant prayed for time and finding that there is no bona fides, dismissed it. One of the reasons for dismissing the IA is that the affidavit in support of the IA is filed by the counsel who was no authority. The reasoning given by the learned Judge is that it is without authority that the affidavit is filed. The specific averment in the affidavit is that the counsel was not ready with the case, so the adjournment was sought. In view of the decision in Abdul Kareem (supra), it cannot be said that the counsel is precluded from filing an affidavit, but as far as the FAO Nos.364/2011, 63/2012, OP(C) No.4095/2011 **==> picture [16 x 9] intentionally omitted <==** second reason stated in the order, it is without bona fides that 35 adjournments were sought and therefore, it can be seen that the IA was not dismissed for default, but partly on merits. 9. As submitted by the counsel for the respondents that, the decree is executed, and what remains is only the execution of damages to the tune of Rs.10,000/-. Once the decree is executed partly i.e., the mandatory part, the damaged part is consequential. 10. Taking into consideration the above fact that if the appeal is remitted back for the consideration of the damages to the tune of Rs.10,000/- alone, it can only be a futile exercise. Therefore, I am of the considered opinion that the appeals do not deserve merit, and therefore, the appeals stand dismissed. Regarding OP(C) No.4095/2011, the order impugned is the order FAO Nos.364/2011, 63/2012, OP(C) No.4095/2011 **==> picture [22 x 9] intentionally omitted <==** rejecting the application under Order 1 Rule 10(2) and Order 6 Rule 17 filed as IA No.371/2011. In view of the dismissal of the FAO Nos.63/2012, 364/2011 as indicated above, OP(C) No.4095/2011 will also stand dismissed. Sd/- BASANT BALAJI JUDGE JS FAO Nos.364/2011, 63/2012, OP(C) No.4095/2011 -11- ## **`APPENDIX OF OP(C) NO.4095/2011`** ``` PETITIONER EXHIBITS Exhibit P1TRUE COPY OF THE ORDER DATED 20.05.2010 IN IA. NO.299/2009 IN AS NO.30/2001 OF THE SUB COURT, CHERTHALA Exhibit P2TRUE COPY OF THE APPLICATION IA NO.586/2010 DATED 10.06.2010 IN AS 30/2001 Exhibit P3TRUE COPY OF THE COUNTER AFFIDAVIT DATED 20.08.2010 IN EXT.P2 APPLICATION Exhibit P4TRUE COPY OF THE APPLICATION IA NO.371/2011 Exhibit P5TRUE COPY OF THE ORDER DATED 05.08.2011 IN IA 371/2011 ```