RP No. 291 of 2024 (Against the order/judgment in OP(C)2768/2023, High Court of Kerala)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **FRIDAY, THE 23[RD] DAY OF FEBRUARY 2024 / 4TH PHALGUNA, 1945** ## **RP NO. 291 OF 2024** ## **AGAINST THE ORDER/JUDGMENT OP(C)2768/2023 OF HIGH COURT OF KERALA** ## **REVIEW PETITIONERS/ RESPONDENTS 1 TO 4:** - **1 THE NAIR SERVICE SOCIETY, AGED 72 YEARS, A COMPANY INCORPORATED UNDER THE KERALA NON TRADING COMPANIES ACT WITH ITS REGISTERED OFFICE/ HEAD OFFICE AT NSS HO, PERUNNA, KOTTAYAM DISTRICT, REPRESENTED BY ITS TREASURER, N.V. AYYAPPAN PILLAI, S/O VELU PILLAI, PIN - 686102** - **2 G. SUKUMARAN NAIR, AGED 82 YEARS, (GENERAL SECRETARY, NAIR SERVICE SOCIETY), S/O V.N. GOPALAN NAIR, GOPURATHINGAL, RUBI NAGAR.P.O., CHANGANACHERRY, PIN - 686103** - **3 DR. M. SASIKUMAR, AGED 78 YEARS, (PRESIDENT, NAIR SERVICE SOCIETY), S/O.MADHAVAN PILLAI, KOTTINATTU BUNGLOW, KANNAMPALLI BHAGOM, KAYAMKULAM, PIN - 690502** - **4 N.V. AYYAPPAN PILLAI, AGED 72 YEARS, ADVOCATE, S/O VELU PILLAI, (TREASURER, NSS), 'PRASANTHI', PADANAYARKULANGARA NORTH, KARUNAGAPPILLI, PIN - 690518 BY ADVS.** - **R.T.PRADEEP** - **P.BIJIMON** - **M.BINDUDAS** ## **RESPONDENTS/ PETITIONERS 1 TO 3 & RESPONDENTS 5 TO 35:** - **1 KOTTUKAL KRISHNAKUMAR, AGED 57 YEARS, S/O.K. VELAYUDHAN PILLAI, 'KALHARAM' MANNAM NAGAR, PAYATTUVILA, BALARAMAPURAM, THIRUVANANTHAPURAM, PIN - 695501** - **2 PALLILAMKARA NSS KARAYOGAM, REGISTER NO.5782, HMT COLONY P.O., KALAMASSERRY, REPRESENTED BY ITS PRESIDENT, M. NANDAKUMAR, S/O. M. PARAMESWARAN NAIR, VAISHAKA BHAVAN, HMT COLONY, KALAMASSERY, ERNAKULAM DISTRICT,, PIN - 683503** - **3 M. NANDAKUMAR, AGED 58 YEARS, S/O M. PARAMESWARAN NAIR, VAISHAKA BHAVAN, HMT COLONY, KALAMASSERY, ERNAKULAM DISTRICT,, PIN - 683503** - **4 K.M. MADHUSOODHANAN, AGED 65 YEARS, S/O NARAYANA PANICKER, SREENIKETHAN, KALANJOOR.P.O., ADOOR, PIN - 689694** **R.P.No. 291 of 2024** ..2.. - **5 M. SANGEETHKUMAR, AGED 66 YEARS S/O MOHANANATHAN NAIR, 'SREE GOVIND', AMBALATHARA.P.O., THIRUVANANTHAPURAM, PIN - 695026** - **6 HARIKUMAR, AGED 66 YEARS, S/O GOVINDA PILLAI, KOIKKAL VIJAYA BHAVANAM, PERUNNA WEST.P.O., CHANGANASSERY, PIN 686102, PIN - 686102** - **7 M.S. MOHAN, AGED 68 YEARS, ADVOCATE, S/O M. SIVARAMAN NAIR, DEVIDAN, PONKUNNAM.P.O., KOTTAYAM DISTRICT,, PIN - 686506** - **8 M.M. GOVINDHANKUTTY, AGED 78 YEARS, S/O MADHAVAN PILLAI, 'MANGHATTU', MANGHATTU LANE, KADAVANTHRA, KALOOR ROAD, KADAVANTHRA.P.O., COCHIN, PIN – 682020.** - **9 CHITHARA S. RADHAKRISHNAN NAIR, AGED 69 YEARS, S/O SANKARA PILLAI, ADVOCATE, AANAND VIHAR, KADACKAL.P.O., CHADAYAMANGALAM, PIN – 691536.** - **10 K.R. SIVANKUTTY, AGED 67 YEARS, (PANDALAM SIVANKUTTY), S/O RAGHAVAN PILLAI, KUNNATH HOUSE, THONNALLOOR, PANDALAM.P.O., PIN - 689501** - **11 C.P. CHANDRAN NAIR, AGED 74 YEARS, S/O PARAMESWARAN NAIR, CHOLLANICKAL, MURUKKUMPUZHA, PALA.P.O., PIN - 686575** - **12 DR. G. GOPAKUMAR, AGED 62 YEARS, S/O K. GOPALA PILLAI, 'DEVIPRASADAM', PERAYAM, MULAVANA.P.O., KUNDARA, KOLLAM, PIN - 691503** - **13 G. MADHUSOODHANAN PILLAI, AGED 77 YEARS, ADVOCATE, S/O.GOVINDA PILLAI, 'VENUKA', NEAR KACHERI, ATTINGAL.P.O., THIRUVANANTHAPURAM,, PIN - 695101** - **14 G. THANKAPPAN PILLAI, AGED 68 YEARS, S/O GOPALA PILLAI, PARVATHIMANDIRAM, KARICKAM.P.O., KOTTARAKKARA, KOLLAM DISTRICT, PIN - 691531** - **15 PROF. K.P. NARAYANA PILLAI, AGED 63 YEARS, S/O.M.P. PADMANABHA PANICKER, KUMARACHADATHU HOUSE, KIDANGARA.P.O., CHANGANASSERRY -2 (VIA), KOTTAYAM, PIN - 686102** - **16 M.P. UDAYABHANU, AGED 52 YEARS, S/O.M.P. KUNHIKRISHNA KURUP, MAVULLAPARAMBATH HOUSE, CHENDAYAD.P.O., VIA PANOOR, THALASSERI, KANNOOR, PIN - 670692** - **17 PROF. MADAVANA BALAKRISHNA PILLAI, AGED 74 YEARS, S/O.KRISHNA PILLAI, 'PRASANTHY', KUDMALOOR P.O., KOTTAYAM, PIN - 686017** **R.P.No. 291 of 2024** ..3.. - **18 P.N. SUKUMARA PANICKAR, AGED 78 YEARS, S/O PARAMESWARAN PILLAI, VANDANALAYAM, AALA.P.O., CHENGANNOOR, ALAPPUZHA, PIN - 689126** - **19 P. NARAYANAN, AGED 73 YEARS, S/O.E.P. GOVINDAN NAIR, 'ASWATHY', CHEMBRA COMPLEX, SHORNUR, PALAKKAD DISTRICT, PIN - 679121** - **20 PROF. ELANJIYIL RADHAKRISHNAN, AGED 73 YEARS, S/O T.N. RAMAPANICKER, RADHA MANZIL, MAYITHARA MARKET P.O., CHERTHALA, ALAPPUZHA,, PIN - 688539** - **21 A. SURESAN, AGED 64 YEARS, ADVOCATE, S/O C. GOPALAKRISHNA MENON, ALLATHU HOUSE, ANTHIKADU.P.O., THRISSUR, PIN - 680641** - **22 A. BALAKRISHNAN NAIR, AGED 64 YEARS, ADVOCATE, S/O K. CHANDU NAIR, MANNIPADI ESTATE, MADHU, R.D. NAGAR P.O., KASARKODE, PIN - 671121** - **23 K. SREESAKUMAR, AGED 63 YEARS, ADVOCATE, S/O.KESAVAN NAIR, 'SREEPARNAM' NOOLELIL, ASAMANNOOR.P.O., ERNAKULAM DISTRICT, PIN - 683549** - **24 S. MADHU, AGED 63 YEARS, S/O SREEDHARAN NAIR, 'DEEPTHI', AIYERKULANGARA, VAIKOM, ERNAKULAM DISTRICT, PIN - 686141** - **25 V. VIJULAL, AGED 51 YEARS, ADVOCATE, S/O.R.VIKRAMAN PILLAI, THUNDAYYATH HOUSE, NANGYARKULANGARA.P.O., HARIPPAD, PIN - 690513** - **26 SHRI. M. SANGEETHKUMAR.T.C., AGED 68 YEARS, FATHER'S NAME NOT KNOWN TO THE PETITIONER, 48/610-10, SREE GOVINDH, AMBALATHARA.P.O., THIRUVANANTHAPURAM, PIN – 695026.** - **27 P. HRISHIKESH, AGED 66 YEARS, KESAVA MANDHIRAM, VADAKKANCHERRY TOWN, VADAKKANCHERRY.P.O., THRISSUR, PIN - 680582** - **28 SHRI. K.B. GANESH KUMAR, AGED 59 YEARS, S/O LATE R. BALAKRISHNA PILLAI, MLA, KRISHNA, MANJALLUR P.O., PATHANAPURAM, KOLLAM DISTRICT, PIN - 689695** - **29 R. MOHANKUMAR, AGED 63 YEARS, PONMELIL, KAVIYOOR P.O., THIRUVALLA, PATHANAMTHITTA, PIN – 689582.** - **30 V.A. BABURAJ, AGED 62 YEARS, ADVOCATE, PRESIDENT, NEDUMANGAD NSS TALUK UNION, NEDUMANGAD.P.O., THIRUVANANTHAPURAM, PIN - 695541** - **31 NSS KARAYOGAM NO.3986, ADIMALY, REPRESENTED BY ITS SECRETARY, L.C. SUKUMARAN, S/O CHELLAPPAN NAIR, LAKSHMI VILASAM, VIVEKANANDA NAGAR, ADIMALY, ADIMALY.P.O., DEVIKULAM TALUK, IDUKKI DISTRICT, PIN - 685561** **R.P.No. 291 of 2024** ..4.. - **32 THE MANIKANDAVILASAM NSS KARAYOGAM RAJAKANDAM NO.2767, RAJAKANDAM P.O., REPRESENTED BY ITS SECRETARY, SHRI. JAYAPRAKASH.K.L., S/O K. CHANDRAN PILLAI, KAVANAL HOUSE, NETTITHAZHU.P.O., UDUMBANCHOLA TALUK, IDUKKI DISTRICT, PIN - 685551** - **33 L.C. SUKUMARAN, AGED 62 YEARS, S/O.CHELLAPPAN NAIR, LAKSHMI VILASAM, VIVEKANANDA NAGAR, ADIMALY, ADIMALY.P.O., DEVIKULAM TALUK, IDUKKI DISTRICT, PIN – 685561.** - **34 JAYAPRAKASH K.L., AGED 52 YEARS, S/O.K. CHANDRAN PILLAI, KAVANAL HOUSE, NETTITHAZHU P.O., UDUMBANCHOLA TALUK, IDUKKI DISTRICT, PIN – 686661.** - **BY ADV DINESH R.SHENOY** **THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 23.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **R.P.No. 291 of 2024** ..5.. ## **O R D E R** _**Dated this the 23[rd] day of February, 2024**_ **Respondents 1 to 4 in O.P.No.2768/2023 seek review of the judgment dated 13.12.2023, which directed the Sub Court, Kottayam to hear and dispose of Ext.P5 amendment application, as also, the leave petition under Section 92 of the Code, at the earliest, within a period of two months from the date of receipt of a copy of the judgment. The main plank of contention in seeking review is that, a judgment in O.P.(C)No.1232/2023 - produced as Ext.P2 in the subject Original Petition – which was not in existence, has been pressed into service to contend that, despite a direction in Ext.P2, the learned Sub Judge is not taking up the matter for grant of leave under Section 92 of the Code of Civil Procedure (C.P.C, for short). Thus, this Court was mislead to pass the judgment under review by suppression of material facts, is the contention urged.** **R.P.No. 291 of 2024** **==> picture [37 x 9] intentionally omitted <==** **2. Learned counsel for the review petitioners would elaborate that, Ext.P2 judgment was dated 16.06.2023, which was modified by the Annexure-1 order (produced in this R.P.) by a learned Single Judge of this Court, as per order dated 20.06.2023. Ultimately, the said Original Petition itself was dismissed as infructuous, as per Annexure-2 judgment dated 31.07.2023. The instant Original Petition was filed on 11.12.2023, wherein the factum of Annexure-1 order and Annexure-2 judgment, which modifies Ext.P2 judgment and ultimately dismissed the Original Petition were suppressed. In such circumstance, the judgment of this Court in O.P.(C)No.2768/2023 has to be reviewed is the submission made by the learned counsel for the review petitioners.** **3. In answer to the above allegations, learned counsel for the respondents (petitioners in O.P.No.2768/2023) would submit that, Ext.P2 was** **R.P.No. 291 of 2024** **==> picture [37 x 9] intentionally omitted <==** **not the solitary document, which was relied upon in the Original Petition. It was also urged that notice has been served in the suit under Section 92 on many of the respondents and that, it is not incumbent upon the Court to ensure service on all the respondents before grant of leave, as held by the Hon'ble Supreme Court in** _**R.M.Narayana Chettiar & Another v. Lakshmanan Chettiar [1991 KHC 7].**_ **According to the learned counsel, there is no suppression of fact and the judgment is not liable to be reviewed. However, to a pointed question made by this Court, learned counsel for the petitioners would submit that the factum of Annexure-1 order and Annexure-2 judgment were not stated in the Original Petition, O.P. (C)No.2768/2023.** **4. Having heard the learned counsel appearing on both sides, this Court finds that, there is a clear suppression and misleading of facts by the petitioner in the Original Petition. Ext.P2** **R.P.No. 291 of 2024** **==> picture [37 x 9] intentionally omitted <==** **judgment O.P.(C).No.1232/2023 was specifically pressed into service to secure the judgment under review in O.P.(C)No.2768/2023. The relevant** **observations in the judgment under review is extracted herebelow:** **The grievance of the petitioners is that no orders have been passed in the leave petition so far, despite Ext.P2 judgment passed by this Court in O.P.(C)No.1232/2023 directing the trial court to pass orders in the leave petition.** **5. This Court also takes note of the fact that this has been specifically pleaded in the Original Petition, vide paragraph no.4, which is also extracted herebelow:** **4. As urgent notice was ordered to all respondents and this was impossible of performance, the mater was taken up before this Hon'ble Court in O.P. (C)No.1232/2023. This Hon'ble Court had issued the following direction: "During the course of argument, the learned counsel for the petitioners fairly submitted that notice has already been given to respondents 1 to 4, who are the President, Secretary and Treasurer of** **R.P.No. 291 of 2024** ..9.. **NSS Karayogam and as such, there will be a direction to the trial court to take up the issue and hear the petitioners and respondents 1 to 4 in the matter of grant of leave under Section 92 CPC and to pass an order (either provisional or final, if it is dismissed), on satisfaction of requirement of any urgent remedy. It is made clear that such leave, if granted, will stand subject to the objection that may be taken by the respondents 5 to 26 on their appearance." True photocopy of order dated 16/6/2023 in O.P.(C)No.1232/2023, High Court of Kerala is produced herewith marked as Exhibit P2. Unfortunately, even then, again the learned Single Judge took the view that there was no time as the General Body was very near and the counter affidavits of all the respondents necessary before the leave petition would be heard and again, urgent notice was ordered.** **(underlined by me, for emphasis)** **6. It could thus be seen that the specific case espoused before this Court was, despite Ext.P2 judgment of this Court, the learned Sub Judge is not taking up the leave petition and is not passing any order therein. It is in such** **R.P.No. 291 of 2024** **==> picture [45 x 9] intentionally omitted <==** **circumstances, that this Court directed the learned Sub Judge to take up the leave petition and to pass orders, after considering the application for amendment of the leave petition preferred by the petitioners in the Original Petition.** **7. As a matter of fact, Ext.P2 judgment, relied on by the petitioners in the Original Petition, was first modified by Annexure-1 order dated 20.06.2023. It was clarified that, in a suit under Section 92 of C.P.C, leave under the Section is a condition precedent for maintaining the suit and that interlocutory applications can be considered after grant of leave under Section 92 of C.P.C. Annexure-1 order also directs an opportunity of being heard to the respondents, in case they appear before the trial court on the following day. This Court further notice that, by virtue of Annexure-2 judgment, the Original Petition bearing no.1232/2023 has been dismissed, as infructuous.** **R.P.No. 291 of 2024** **==> picture [45 x 9] intentionally omitted <==** **It is in suppression of Annexure-1 order and Annexure-2 judgment that, the instant judgment which is sought to be reviewed has been obtained by the petitioners. The respondents herein (petitioners in the subject O.P) have no case that they were not aware of Annexure-1 order and Annexure-2 judgment.** **8. This Court, therefore, finds that, the petitioners have indulged in a very nefarious conduct, which is so saddening to be noted. In** **view of the above referred facts and circumstances, the judgment in O.P.No.2768/2023 is re-called and the Original Petition is dismissed, with a cost of Rs.25,000/- (Rupees twenty five thousand only) to be paid to the Kerala State Legal Services Authority (KELSA) within period of three weeks from the date receipt of a copy of this order. In case the cost is not paid as directed above, the KELSA will take steps for recovery of same from the respondent herein,** **R.P.No. 291 of 2024** ..12.. **treating the same as arrears of land revenue.** Sd/- **C. JAYACHANDRAN JUDGE** **TR** **R.P.No. 291 of 2024** ..13.. ## **APPENDIX OF RP 291/2024** **PETITIONER ANNEXURES** **Annexure I TRUE COPY OF ORDER DATED 20.6.2023 IN O.P.(C) NO.1232/2023 OF THE HON'BLE HIGH COURT OF KERALA Annexure II TRUE COPY OF JUDGMENT DATED 31.7.2023 IN O.P.(C) NO.1232/2023 OF THE HON'BLE HIGH COURT OF KERALA**