Raghuprasad v. M. Raghunathan and Vasumathi

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR FRIDAY, THE 19[TH] DAY OF NOVEMBER 2021/28TH KARTHIKA, 1943 RP NO.594 OF 2021** **AGAINST THE ORDER DTD.24.10.2019 IN RSA 686/2016 OF HIGH** **COURT OF KERALA** ## **REVIEW PETITIONER/APPELLANT:** RAGHUPRASAD, AGED 47 YEARS, S/O.N.MADHAVAN NAIR, RESIDING AT 1ST FLOOR, 'SREEVATSAM', SAKTHI NAGAR, CHADAYANKALAI, KANJIKODE WEST.P.O., PALAKKAD TALUK, NOW RESIDING AT SAROJINI SADANAM, A.V.P ROAD, KANJIKODE, PALAKKAD DISTRICT, PIN - 678621. BY ADVS. SRI.S.M.PREM SRI.K.RAJEEV SRI.P.RAMACHANDRAN (PALAKKAD) SRI.H.NARAYANAN ## **RESPONDENTS/RESPONDENTS:** 1 M.RAGHUNATHAN, AGED 75 YEARS, S/O.M.P.SIVASANKARAN NAIR, RESIDING AT SAROJINI SADANAM, A.V.P.ROAD, KANJIKODE, PALAKKAD DISTRICT, PIN - 678621. 2 VASUMATHI, AGED 70 YEARS, W/O.M.RAGHUNATHAN, RESIDING AT SAROJINI SADANAM, A.V.P.ROAD, KANJIKODE, PALAKKAD DISTRICT, PIN – 678621. BY ADV.SRI.P.B.KRISHNAN THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 15.11.2021, ALONG WITH CO.117/2016, THE COURT ON 19.11.2021 DELIVERED THE FOLLOWING: R.P.No.594 of 2021 & Cross Objection No.117 of 2016 in R.S.A.No.686 of 2016 ..2.. # **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **FRIDAY, THE 19[TH] DAY OF NOVEMBER 2021/28TH KARTHIKA, 1943** ## **CROSS OBJECTION No.117 OF 2016** **IN RSA 686/2016** ## **CROSS OBJECTORS/RESPONDENTS 1 & 2 IN RSA:** 1 M.RAGHUNATHAN, AGED 70 YEARS, S/O. M.P.SIVASANKARAN NAIR, RESIDING AT SAROJINI SADANAM, A.V.P. ROAD, KANJIKODE, PALAKKAD- 678 621. 2 VASUMATHI, AGED 65 YEARS, W/O.M.RAGHUNATHAN, RESIDING AT SAROJINI SADANAM, A.V.P. ROAD, KANJIKODE, PALAKKAD- 678 621. BY ADVS. SRI.P.B.KRISHNAN SRI.P.M.NEELAKANDAN SRI.SABU GEORGE SRI.P.B.SUBRAMANYAN ## **RESPONDENT/APPELLANT IN RSA:** RAGHUPRASAD, AGED 42 YEARS, S/O.N.MADHAVAN NAIR, RESIDING AT 1[st] FLOOR, 'SREEVATSAM' SAKTHI NAGAR, CHADAYANKALAI, KANJIKODE WEST P.O., PALAKKAD TALUK, NOW RESIDING AT 'SAROJINI SADANAM', A.V.P. ROAD, KANJIKODE, PALAKKAD DISTRICT- 678 621. BY ADV SRI.S.M.PREM ## **THIS CROSS OBJECTION HAVING COME UP FOR ADMISSION ON** **15.11.2021, ALONG WITH RP.594/2021, THE COURT ON 19.11.2021 DELIVERED THE FOLLOWING:** R.P.No.594 of 2021 & Cross Objection No.117 of 2016 in R.S.A.No.686 of 2016 **==> picture [22 x 9] intentionally omitted <==** ## **ORDER** The review petitioner is the defendant in O.S.No.536/2012 of the Principal Munsiff's Court, Palakkad (hereinafter referred to as 'the trial court'). The suit was filed for an injunction restraining the defendant and his men from causing any disturbance or hindrance to the transportation through the plaint B schedule property; restraining the defendant and his men from entering into the plaint B schedule property; restraining the defendant and his men from causing any obstruction to construct compound wall on the southern side of A schedule property. 2. The trial court dismissed the suit on 31.1.2015. The plaintiffs preferred appeal as A.S.No.59/2015 before the District Court, Palakkad (hereinafter referred to as 'the first appellate court'). The first appellate court allowed the appeal in part and decreed the suit as follows:- R.P.No.594 of 2021 & Cross Objection No.117 of 2016 in R.S.A.No.686 of 2016 **==> picture [22 x 9] intentionally omitted <==** _“25. In the result, the appeal is allowed and suit is decreed in part as follows:_ _(a) The defendant and his men are restrained by permanent prohibitory injunction from parking any vehicles in plaint B schedule pathway. Defendant is further restrained by a decree of permanent injunction from causing obstruction to plaintiffs reconstructing either the southern boundary wall of plaint B schedule pathway or closing the existing opening in the wall._ _(b) Suit seeking to restrain defendant and his men from using plaint B schedule pathway is, however, dismissed.”_ 3. The defendant filed R.S.A.No.686/2016 before this Court on 12.7.2016. The plaintiffs, who are the respondents in the second appeal, entered appearance and filed Cross Objection No.117/2016 on 25.7.2016. After having heard both sides, a learned Single Judge of this Court dismissed the second appeal on 24.10.2019 R.P.No.594 of 2021 & Cross Objection No.117 of 2016 in R.S.A.No.686 of 2016 **==> picture [22 x 9] intentionally omitted <==** retaining Cross Objection No.117/2016 on the file of this Court. 4. The defendant preferred SLP No.26882/2019 before the Supreme Court. The Apex Court dismissed the SLP on 22.11.2019 confirming the judgment and order dated 24.10.2019 in R.S.A.No.686/2016. 5. After the disposal of the SLP, the learned counsel for the respondents sought an early posting to dispose of the cross objection at an early date. This Court issued notice to the appellant. Thereupon, the defendant filed Review Petition No.594/2021 before this Court with a petition to condone the delay of 112 days in filing the RP. According to the defendant, the review petition is necessitated to avoid a dichotomy of proceedings which would otherwise invite strange result contrary to the statute. The delay was condoned by this Court. R.P.No.594 of 2021 & Cross Objection No.117 of 2016 in R.S.A.No.686 of 2016 **==> picture [22 x 9] intentionally omitted <==** 6. Heard Sri.S.M.Prem, the learned counsel for the review petitioner/defendant and Sri.S.V.Balakrishna Iyer, the learned Senior Counsel for the respondents/plaintiffs. 7. It is settled principle of law that where an appeal has been disposed of on the merits and the cross objection has by sheer inadvertence remained to be decided, it cannot be legitimately held, having regard to the language of Order 41 Rule 22 that the cross objection cannot survive and dispose of by the appellate court. That would be all the more so where the mistake on account of which the cross objection has not been decided is committed by the court itself before which the cross objection is filed. (see **Thakur Umed Singh v. Amolakchand** [AIR 1963 RAJASTHAN 93 (V 50 C 30)], **Nanoo Gopinathan v. Neelakantan** [1989 KHC 555] and **Hari Shankar Rastogi v. Sham Manohar** [2005 KHC 575]). Thus, it is clear that cross objection like an R.P.No.594 of 2021 & Cross Objection No.117 of 2016 in R.S.A.No.686 of 2016 **==> picture [22 x 9] intentionally omitted <==** appeal. Even when the appeal is dismissed, cross objection can be heard and decided. There is no legal bar in this regard. It is not correct to contend that cross objection did not survive on the appeal being decided. It is also not correct to contend that review of judgment is absolutely warranted to consider the appeal and cross objection together. 8. Coming to the cross objection, the cross objectors mainly seek the following substantial questions of law for consideration:- - _(i) Is the lower Appellate Court justified in proceeding on the basis that there was a grant of right of way in respect of the Plaint B schedule property in favour of the Defendant?_ - _(ii) Is the denial of relief of injunction restraining user of Plaint B schedule property justified?_ R.P.No.594 of 2021 & Cross Objection No.117 of 2016 in R.S.A.No.686 of 2016 **==> picture [22 x 9] intentionally omitted <==** 9. When the matter has come up for hearing, the learned Senior Counsel submits that the cross objection is confined to paragraph 24 of the first appellate court judgment which was confirmed by this Court in second appeal. To canvass the legal position, the learned counsel for the plaintiffs/cross objectors relied on paragraph 24 of the first appellate court judgment. Paragraph 24 of the first appellate court judgment reads as follows:- _“24. ‘The injunction sought by plaintiffs in this respect ought to have been granted by the lower court. Since I have held defendant as not having acquired any right of easement by prescription, plaintiffs have every right to reconstruct the southern boundary wall of plaint B schedule property if the wall exclusively belongs to them and consequently close the opening connecting plaint B schedule pathway with the 14 cents to the south thereof. In any view of the matter, plaintiffs have every legal right to restrain the defendant from using plaint_ R.P.No.594 of 2021 & Cross Objection No.117 of 2016 in R.S.A.No.686 of 2016 **==> picture [22 x 9] intentionally omitted <==** _B schedule property across the southern boundary of the pathway for access to his Institutions situated in the southern 14 cents. Point Nos.1 to 3 in the appeal are answered accordingly. The impugned judgment is interfered with and set aside only to the extent as aforementioned.”_ 10. It is stated that therein that the plaintiffs have every right to restrain the defendant from using plaint B schedule property across the southern boundary of the pathway for access to his institutions situated in the southern 14 cents. This finding is self explanatory. While confirming the judgment of the first appellate court, this Court considered the entire aspects in detail in paragraph 10 of the judgment dated 24.10.2019. In terms of the first appellate court judgment as confirmed by this Court, the cross objection is pending consideration seeking modification of the decision of the first appellate court. R.P.No.594 of 2021 & Cross Objection No.117 of 2016 in R.S.A.No.686 of 2016 **==> picture [28 x 9] intentionally omitted <==** 11. It is absolutely unwarranted to re-open a judgment of this Court which has been confirmed by the Apex Court in SLP. The learned counsel for the review petitioner/defendant seeks to review the entire judgment though he preferred an SLP before the Apex Court challenging the judgment and decree of this Court and suffered a dismissal of the SLP. It is true that the Review Petition is maintainable even after the dismissal of the SLP by the Apex Court. However, in the facts of this case, there must be an end to the litigation. It is evident that what are pleaded before the Apex Court in the SLP are taken as grounds in this review petition presumably for the reason that this Court issued notice to the defendant/review petitioner in the cross objection after the dismissal of the second appeal. No error apparent on the face of records is brought out to review the judgment. No sufficient reasons are also alleged. All the grounds R.P.No.594 of 2021 & Cross Objection No.117 of 2016 in R.S.A.No.686 of 2016 **==> picture [28 x 9] intentionally omitted <==** raised in the review petition are experimental in nature and are liable to be discarded. In view of the categorical finding in paragraph 24 of the first appellate court judgment, it is just and proper to modify the judgment of the first appellate court in terms of paragraph 24 of the first appellate court judgment. The judgment and decree of the first appellate court is modified clarifying that the plaintiffs have every legal right to restrain the defendant from using plaint B schedule property across the southern boundary of the pathway for access to his institutions situated in the 14 cents. Resultantly, the review petition is dismissed. The cross objection is allowed in part as stated hereinabove. There will be no order as to costs. Pending applications, if any, stand closed. skj Sd/- **N.ANIL KUMAR, JUDGE**