## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
**PRESENT :**
**THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH**
**FRIDAY, THE 15TH JULY 2011 / 24TH ASHADHA 1933**
**CRP.No. 270 of 2011()**
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**AS.167/2008 of III ADDL. DISTRICT COURT, TRIVANDRUM OS.1427/2005 of II ADDL.M.C.,TRIVANDRUM**
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## **REVN. PETITIONER/APPELLANT/PLAINTIFF:-**
**---------------------------------------------------------------**
**PRADEEP,S/O.SADANANDAN, RESIDING AT T.C.77/926,MOONNAMMANAKKAL, PETTAH,THIRUVANANTHAPURAM.**
**BY ADV. SRI.R.S.KALKURA SRI.HARISH GOPINATH SRI.V.VINAY MENON SMT.KVP.JAYALEKSHMY SRI.M.AJAY (IRUMPANAM)**
**RESPONDENT/DEFENDANT:-**
**---------------------------------------**
**BINDU,D/O.INDIRA,RESIDING AT KUZHIVILAKATHU VEEDU,MOONNAMMANAKKAL,PETTAH, THIRUVANANTHAPURAM-695001.**
**BY**
**THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 15/07/2011, ALONG WITH CRP NO.271 OF 2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:**
**APPENDIX**
## **CRP.No. 270 of 2011()**
## **PETITIONER'S EXHIBITS:-**
**1. CERTIFIED COPY OF THE JUDGMENT DTD.7.1.2011 IN AS.NO.167 OF 2008 ON THE FILE OF THE 3RD ADDITIONAL DISTRICT JUDGE, THIRUVANANTHAPURAM.**
**2. TYPED COPY OF THE JUDGMENT IN OS.NO.1427 OF 2005 DATED 23.1.2007 ON THE FILE OF THE 2ND ADDITIONAL MUNSIFF'S COURT, THIRUVANANTHAPURAM.**
**RESPONDENT'S EXHIBITS:NIL.**
## **( TRUE COPY )**
_**Kvs/-**_
**PA TO JUDGE.**
## **THOMAS P. JOSEPH, J.**
= = = = = = = = = = = = = = CRP.Nos.270 & 271 of 2011.
= = = = = = = = = = = = = =
Dated this the 15[th] July, 2011.
## **J U D G M E N T**
These Civil Revision Petitions arise from the Common Judgment of learned IIIrd Addl.District Judge, Thiruvananthapuram in AS.Nos.167 of 2008 and 168 of 2008, respectively. Petitioner, common in the cases filed those appeals challenging dismissal of OS.Nos.1427 of 2005 and 1423 of 2005, respectively of the court of learned IInd Addl.Munsiff, Thiruvananthapuram. Petitioner filed those suits against respondents in these Civil Revision claiming damages for allegedly instituting vexatious litigation against him and putting him to loss. Learned Munsiff found no merit or substance in the allegations and dismissed the suits. Learned Addl.District Judge while concurring with the decision of learned Munsiff observed that if necessary, it was open to the petitioner to claim compensatory costs under Section 35(A) and Sec.95 of the Code of Civil
**CRP.Nos.270 & 271/2011.**
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Procedure (for short, “the Code”). Learned counsel has contended that appellate court has committed an illegality in holding so and that even beyond Section 35(A) and Sec.95 of the Code, it is open to petitioner to file separate suits claiming damages for vexatious litigation initiated by the respondents and placed reliance on the decision in **Bank of India v. Lekhimoni Das** [(2000) 3 SCC 640] and **Vinod Seth v. Devinder Bajaj** [(2010) 8 SCC 1]. It is also submitted by learned counsel that relevant facts were not taken into account by the courts below.
2. Assuming that learned Addl.District Judge was not correct in holding that remedy of petitioner was by way of seeking compensatory costs either under Sec.35(A) or under Sec.95 of the Code, still the question arises whether this court is required to entertain these Civil Revision Petitions on the finding of facts entered by learned Munsiff as confirmed by Addl.District Judge. Various decisions on the power of the High Court under Sec.115 of the Code say
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that a re-appraisal of evidence is not possible while exercising revisional power under Sec.115 of the Code and that interference with the finding of Subordinate Court is possible only if it is perverse or, there is non-appraisal or non-consideration of the evidence. (See **Yunus Ali v. Khursheed Akram** (2008) 7 SCC 293). Hence, notwithstanding the observation that learned Addl.District Judge has made as to the remedy of petitioner under Sec.35
(A) and Sec.95 of the Code, it is to be decided whether finding of fact entered by the learned Munsiff as confirmed by Addl.District Judge requires interference in revision. For that, it is necessary to refer relevant facts of the cases.
3. Petitioner is employed in the Gulf. He purchased 8 cents of land in the year, 1995 and constructed a building in the said property. Petitioner alleged that respondents and another who own property adjacent to the said 8 cents wanted to construct a private way by making use of a portion of property belonging to the petitioner as
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well and to facilitate that, demolished western compound wall of petitioner. Petitioner filed OS.No.339 of 2005 in the court of learned IIIrd Addl.Munsiff, Thiruvananthapuram. He thereafter, went abroad. While so, respondents and another filed OS.No.1219 of 2005 in the court of learned Munsiff, Thiruvananthapuram against petitioner alleging that he tried to close down a public pathway. In OS.No.1219 of 2005 summons was ordered to petitioner and the case was posted for his appearance on 31.8.2005 and then, on 7.9.2005. Petitioner says, on account of the said suit and summons issued to him, he had to avail leave without allowance from his Company and reach his native place to defend OS.No.1219 of 2005. Thus, he incurred a loss of Rs.50,000/-. Petitioner wanted respondents and another who filed OS.No.1219 of 2005, to bear the said loss in equal proportion and laid three suits against respondents and another, separately. Respondents contended (in OS.Nos.1423 of 2005 and 1427 of 2005, respectively) that
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there was a public way along the side of property belonging to petitioner which he encroached upon and attempted to construct a compound wall which was resisted by the local people. They denied that they demolished compound wall of petitioner. They also claimed that they had reasonable cause to file OS.No.1219 of 2005 against petitioner. It was contended that at any rate, it was not necessary for petitioner to have personally come to his native place to defend OS.No.1219 of 2005 since he by that time had executed a power of attorney in favour of his wife and OS.No.1219 of 2005 was defended by him through his power of attorney. Learned Munsiff found merit in the contention of respondents and non suited petitioner. As aforesaid, apart from confirming that finding of learned Addl.Sessions Judge also held that when petitioner had the remedy of claiming compensatory costs under Sec.35(A) and Sec.95 of the Code, separate suits for the purpose was not so warranted. Learned counsel submitted that after
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learned Addl.Sessions Judge disposed of the appeals OS.No.339 of 2005 was decreed and OS.No.1219 of 2005 was dismissed in favour of petitioner.
4. So far as claim for damages is concerned, no doubt if petitioner was dragged into a vexatious litigation without any reasonable probable cause he is entitled to claim compensation be it in the form of compensatory costs in the same suit under Sec.35(A) and Sec.95 of the Code or, as the decisions which learned counsel has relied, on by filing a separate suit. But, in either case it is the responsibility of petitioner to show that litigation against him was vexatious and without reasonable and probable cause. That should be the foundation for petitioner claiming compensation for respondents litigating against him. I may also bear in mind that it is the right of a citizen to bring a suit of a civil nature before a civil court, and, it is open to the civil court at different stages to consider whether the suit is vexatious and, if not,
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maintainable. In the present case, the dispute concerned a way on the western side of property of the petitioner which petitioner claimed is a private way and respondents and others claimed, is a public way. Based on the above contentions, the parties went into the civil court by filing their own suits. It is a different matter that the civil court after consideration of the evidence accepted the case of petitioner that the way in question is private way or that respondents trespassed into his property and demolished the compound wall. That has nothing much to do with the question whether respondents had reasonable and probable cause in filing OS.No.1219 of 2005. As learned counsel in fairness submitted, it is not found by the civil court (in OS.No.339 of 2005 or in OS.No.1219 of 2005) that the defence of respondents or, the suit filed by them are vexatious. Learned Munsiff has observed (at a time when OS.No.339 of 2005 and OS.No.1219 of 2005 were pending) that there was a real dispute between the parties as to the
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right claimed by the respondents and that petitioner himself had filed a suit against respondents and another to establish the right he claimed alleging that respondents have no right or authority in any portion of his property. Learned Munsiff has also observed that since petitioner had already filed OS.No.339 of 2005 through his power of attorney holder, his wife, and the same power of attorney holder had contested the suit on his behalf in OS.No.1219 of 2005, physical presence of petitioner, as claimed by him for such long period was not necessary. From the pass port of the petitioner, learned Munsiff observed that petitioner came to India on 6.10.2005 and returned only on 29.10.2005 and such a long stay at his native place to defend OS.No.1219 of 2005 was not necessary. In other words, learned Munsiff found that such prolonged stay at the native place was a luxury for petitioner for which respondents cannot be made liable. Learned Munsiff took note of the fact that, on the allegations made by petitioner he could have filed a single
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suit against respondents and the other claiming damages but he chose to file three suits against them. I must also bear in mind that damages claimed is not for the alleged demolition of the compound wall. On the other hand, it is merely for filing OS.No.1219 of 2005 against petitioner.
5. Having heard learned counsel and gone through the judgments under challenge, I find no perversity in the finding of the learned Munsiff or non-consideration of any material calling for interference in revision. If that be so, these civil revisions cannot be entertained.
These Civil Revision Petitions are dismissed.
**THOMAS P. JOSEPH,** (Judge)
**Kvs/-**
