R.P.No.1064/2019 in R.S.A.No.66/2010

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA TUESDAY, THE 26[TH] DAY OF JULY 2022 / 4TH SRAVANA, 1944 RP NO. 1064 OF 2019 AGAINST THE ORDER/JUDGMENTRSA 66/2010 OF HIGH COURT OF** ## **KERALA** ## **REVIEW PETITIONERS/RESPONDENTS NOS.4, 6 TO 14:** 1 M.P.CHANDRIKA AGED 59 YEARS D/O.P.K.YESODHA,VALYAPURAYIL HOUSE, MOKERI AMSOM,DESOM,KOORARA.P.O, KANNUR DISTRICT. 2 P.P.INDIRA, AGED 56 YEARS PULLUKKARA AMSOM,PANDAKKAL DESOM, NALUTHARA.P.O. 3 K.P.USHA, AGED 54 YEARS D/O.P.K.YESODHA,MADHYATH MEETHAL HOUSE,CHOKLI AMSOM,KEEZHADOM DESOM, P.O.CHOKLI,KANNUR DISTRICT. 4 A.P.BALAMANY, AGED 39 YEARS D/O.P.K.MALATHI,PUTHENPURAYIL HOUSE, THRIPANGOTTUR AMSOM,POYILOOR DESOM, POYILOOR.P.O,KANNUR DISTRICT. 5 P.P.MINI, AGED 35 YEARS D/O.P.K.MALATHI,PUTHENPURAYIL HOUSE, THRIPANGOTTUR AMSOM,POYILOOR HOUSE, POYILOOR DESOM,POYILOOR.P.O,KANNUR DISTRICT. 6 BHANUMATHI, AGED 57 YEARS W/O LATE.P.N.BALAKRISHNAN,PAZHAYAPURAYIL, PULLOOKARA.P.O,KANNUR DISTRICT. 7 BAVITHA, AGED 37 YEARS D/O LATE P.N.BALAKRISHNAN,PAZHAYAPURAYIL, PULLOOKARA.P.O,KANNUR DISTRICT. R.P.No.1064/2019 in 2 R.S.A.No.66/2010 8 BIJITHA, AGED 34 YEARS D/O LATE P.N.BALAKRISHNAN,PAZHAYAPURAYIL, PULLOOKARA.P.O,KANNUR DISTRICT. 9 BIJUJA, AGED 31 YEARS D/O.LATE P.N.BALAKRISHNAN,PAZHAYAPURAYIL, PULLOOLKARA.P.O,KANNUR DISTRICT. 10 JUHITH KRISHNA, AGED 26 YEARS D/O.LATE P.N.BALAKRISHNAN,PAZHAYPURAYIL, PULLOOKARA.P.O,KANNUR DISTRICT. 11 P.K.YESODHA, AGED 62 YEARS W/O KUNHIKANNAN (DIED),PERINGATHOOR AMSOM,PULLOOKARA DESOM,KANNUR DISTRICT. BY ADVS. M.SASINDRAN SRI.SATHEESHAN ALAKKADAN ## **RESPONDENTS/APPELLANT NOS.2 TO 6 AND RESPONDENTS NOS.2 AND** ## **3:** 1 P.VIJAYI AGED 74 YEARS W/O.RAGHAVAN,POOVALLUPARAMBATH, THRIPANGOTTOOR AMSOM,POYILOOR DESOM, KANNUR DISTRICT-670693. 2 RAJINI, AGED 47 YEARS D/O.RAGHAVAN,POOVALLUPARAMBATH, THRIPANGOTTOOR AMSOM,POYILOOR DESOM, KANNUR DISTRICT-670693. 3 SAJINI, AGED 40 YEARS D/O.RAGHAVAN,POOVALLUPARAMBATH, THRIPANGOTTOOR AMSOM,POYILOOR DESOM, KANNUR DISTRICT-670693. R.P.No.1064/2019 in 3 R.S.A.No.66/2010 4 RAGESH, AGED 39 YEARS S/O.RAGHAVAN,POOVALLUPARAMBATH, THRIPANGOTTOOR AMSOM,POYILOOR DESOM, KANNUR DISTRICT-670693. 5 SANEESH, AGED 36 YEARS S/O.RAGHAVAN,POOVALLUPARAMBATH, THRIPANGOTTOOR AMSOM,POYILOOR DESOM,KANNUR DISTRICT-670693. 6 THE ASSISTANT EDUCATIONAL OFIFCER, PANOOR-670692,KANNUR DISTRICT. 7 THE DISTRICT COLLECTOR, KANNUR-670001. BY ADVS. SRI.K.MOHANAKANNAN SMT.M.A.ZOHRA THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 21.07.2022, THE COURT ON 26.07.2022 DELIVERED THE FOLLOWING: R.P.No.1064/2019 in R.S.A.No.66/2010 4 ## **M.R.ANITHA, J** ****************** R.P.No.1064 of 2019 in R.S.A.No.66 of 2010 ---------------------------------------------------------Dated this the 26[th] day of July, 2022 ## **O R D E R** Review petition has been filed under Order 47 Rule 1 read with Section 114 of the Code of Civil Procedure, 1908. Review petitioners are the respondents 4 and 6 to 14 in the above R.S.A. First respondent/plaintiff in the R.S.A died on 06.07.2016. Review petitioners 1 to 3 and late P.N.Balakrishnan are the legal heirs of the deceased 1[st] respondent in the appeal and they are already in the party array. The suit was filed by the plaintiff for declaration that Bhasha Poshini Aided L.P.School (in short 'the School') described in the plaint schedule is a thavazhi property and for effecting transfer of management and correspondentship of the said school the written consent of all the members of 5 R.P.No.1064/2019 in R.S.A.No.66/2010 thavazhi is essential. The case of the plaintiff is that the School and the land appurtenant to the school was originally belonged to Puthenpurayil Kandiyam Kunhi Kannan and later he gifted the same to his wife Chirutha and her children by registered gift deed bearing Reg.No.1528/1947. It is alleged that before the execution of the gift deed management and correspondentship of the school was transferred in the name of Chirutha and she was the Manager and correspondent in the school till her death in 1973. After her death, with the concurrence of all other legatee in the gift deed, one among the legatee Raghavan was appointed as Manager and correspondent. Raghavan died in the year 1999 and the plaint schedule property and school devolved on the plaintiffs, 1[st] defendant and defendants 2 to 6 who are the legal heirs of Raghavan. It is alleged in the plaint that 5[th] defendant is trying to get herself appointed as Manager and correspondent of the school and hence plaintiff issued a lawyer notice on 14.01.2000 contending that the property is a thavazhi property and all thavazhi members are having right over the school and the appointment of the Manager of the school can only be done R.P.No.1064/2019 in 6 R.S.A.No.66/2010 with the written consent of all thavazhi members. The 7[th] defendant in the suit is the Assistant Educational Officer, Thalassery and he has been made a party as he is the approving authority of the appointment of the Manager of the School. 8[th] defendant is the District Collector representing the State of Kerala. In view of the contentions raised by the first defendant remaining members of the thavazhi were also impleaded as additional parties in the suit. 2. Defendants 2 to 6 are the contesting defendants and filed written statement contending that suit is barred by Section 33 of the Kerala Education Rules (for short 'the Rules'). It is admitted by defendants 2 to 6 that the School originally belonged to Kunhikannan and he executed a deed in favour of Chirutha and thereby ownership and management was handed over to Chirutha. Later, she executed a will in favour of Raghavan regarding the ownership and management of the school and therefore, after the death of Chirutha, Raghavan became the owner and is in management of the school. They denied the contention of the plaintiffs that Raghavan was appointed as the 7 R.P.No.1064/2019 in R.S.A.No.66/2010 Manager with the consent of all other thavazhi members. They also contended that Raghavan died in the year 1999 and thereafter defendants 2 to 6 became the owner of the school property and its management. Among them, 5[th] defendant applied for managership with the consent of other co-owners. It is also contended that civil court is incompetent to give a declaration, as prayed for, in the suit. 3. 7[th] defendant, the Assistant Educational Officer, Panur filed statement contending that plaintiff issued a notice through lawyer in the year 2000 and informed that the 7[th] defendant that Smt.Yasodha, the sister of the Manager was one of the co-owner of the school and without getting their consent, the management of the school should not be transferred to anybody. A reply was sent by the 7[th] defendant stating that no such proposal was received by the 7[th] defendant. 5[th] defendant also submitted an application for management of the school and hence 7[th] defendant could not take a decision in view of the dispute pending with respect to ownership of the school. Thereafter, as per the direction of Deputy Director of Education, 7[th] defendant R.P.No.1064/2019 in 8 R.S.A.No.66/2010 conducted a hearing and plaintiff was directed to produce documents to prove her claim and she could not produce any document and thereafter the application was forwarded to Director of Public Instruction for obtaining permission as provided under Rule 5A of Chapter III of the Rules. So, according to the 7[th] defendant, no final decision has been taken at that time. 4. PW1 examined and Exts.A1 to A7 marked from the side of the plaintiff. Ext.B1 marked from the side of the defendants. After trial, learned Munsiff decreed the suit with cost declaring that the school described in the plaint schedule is a thavazhi property and that they effected transfer of management and correspondentship of the school in the name of 5[th] defendant, written consent of all the members of thavazhi is essential. 7[th] defendant was directed by way of mandatory injunction to give the plaintiff reasonable opportunity to raise her objection and counter effectively in the matter of consideration of the 5[th] defendant's application for transfer of management and correspondent of plaint schedule school. R.P.No.1064/2019 in 9 R.S.A.No.66/2010 5. Aggrieved by the same, defendants 2 to 6 filed A.S.No.26/2008 before the Principal Subordinate Court, Thalassery. As per the judgment dated 18.08.2009 the learned Sub Judge dismissed the appeal with cost. Aggrieved by the same, defendants 2 to 6 came up in appeal before this Court. 6. At the time of hearing, the defendants/appellants contended that suit is not maintainable in view of the dictum laid down in **Avvu v. Bapputty : 1977 KLT 648** . Sections 7 and 9 of Kerala Education Act and Chapter III and XXVIII of Kerala Education Rules were referred to. It was contended that there is no express bar against civil suit in those provisions. But it is found that the remedies by way of appeal to the appellate authority and revision to the Government are provided under the Act and the Rules against the decision of the Educational authority appointing Manager and hence there is an implied bar in the civil court to take cognizance of the suit now before the court, contended the learned counsel for the appellants. Learned Single Judge took a view that as per the decision in **Avvu** 's case, the suit is not maintainable and appeal allowed and decree of the R.P.No.1064/2019 in 10 R.S.A.No.66/2010 trial court as well as the first appellate court was set aside and the suit dismissed. 7. In **Avvu** 's case, the relevant paragraph quoted in the impugned judgment by the learned Single Judge would state that as per Sections 7 and 9 of the Kerala Education Act and Chapter III and XXVIII of the Rules when legal title of management is provided for by the statutory provisions as based upon approved by the educational authorities, a suit to remove a person duly approved by the educational authorities cannot lie without due cancellation or vacation of the approval. It is also found that against such a duly approved manager, the relief of injunction cannot lie. Hence in that case, it was held that the decree for removal of first defendant and for injunction against him is to be vacated. 8. Learned counsel for the review petitioners would contend that there is an error apparent on the face of the record of the judgment passed since in this case the case was not one for simple injunction and the relief for declaration was also sought to the effect that the school described in the plaint R.P.No.1064/2019 in 11 R.S.A.No.66/2010 schedule is a thavazhi property and for effecting transfer of management and correspondentship of the school in the name of 5[th] defendant, written consent of all members of the thavazhi is essential. According to the learned counsel, that civil right sought to be declared by the plaintiff can be done only through a civil court and not by the authorities provided under the Kerala Education Act and Rules. In this context, learned counsel placed reliance on **Chandrika Gopinathan and Another v. State of Kerala and Others : 2017 (3) KLT S.N. 77 : 2017 KHC 704** wherein, while dealing with the issue with regard to the appointment of a Manager, it has been held by a learned Single Judge of this Court that the Rules provides only for an appointment of the Manager who is generally to be appointed under the authority of District Educational Officer but only a temporary Manager has been appointed and that can only be an arrangement that will subsist until such time as the suit is disposed of by the court below or until such time as orders are issued by a competent court regarding the proprietary rights of the parties on the properties concerned. That was also a case in R.P.No.1064/2019 in 12 R.S.A.No.66/2010 which dispute arose between two persons claiming entitled to be the Manager of two schools. 9. In **Iysha Narayanan v. State of Kerala : ILR 1985** **(1) Ker 348 : 1984 KHC 181** is further relied on by the learned counsel wherein while dealing with Chapter XIVA Rule 92 of the Kerala Educational Rules, 1959 (Kerala), Division Bench of this Court held that there can be no doubt that the right to agitate on question of civil rights in a civil court would remain unaffected inspite of the decision by the educational authorities for the limited purpose of carrying on the functions and fulfilling the obligations under the Act. It does not oust the jurisdiction of the civil court in matters touching civil rights of parties. It is also held that when right to the ownership of a school is seriously in dispute, a proper decision thereon can be rendered only by examining a large volume of evidence oral and documentary which the parties will be interested in adducing. The educational officers and the Secretary to Government would be unequal to the task of adjudicating such a dispute. R.P.No.1064/2019 in 13 R.S.A.No.66/2010 10. Learned counsel for the respondents, on the other hand, would contend that the practice of filing a review petition after retirement of the judge who passed the order has been deprecated by the Apex Court in **Vedanta Ltd. and Ors v. The Goa Foundation and Ors. : MANU/SC/0457/2021** . So, in the present case, according to her the review petition has been filed after the retirement of the judge, who pronounced the judgment. 11. Learned counsel for the respondents also would contend that the principles laid down in **Avvu** 's case is squarely applicable in the present case and the present petition filed according to her is beyond the scope of review. Learned counsel would also contend that a judgment passed on merits cannot be reviewed and the powers of review has to be exercised within the limits prescribed by law. 12. In **Lily Thomas V. Union of India : 2000 KHC 536** it has been held by the two Judge Bench of the Apex Court that mere possibility of two views on the subject is not a ground for review and error contemplated under Order XLVII Rule 1 must be 14 R.P.No.1064/2019 in R.S.A.No.66/2010 such which is apparent on the face of record and not an error which has to be fished out and searched. In **Chandra Kanta v. Sheik Habib** : **1975 KHC 905 ,** a two Judge Bench of the Apex Court held that review of a judgment is a serious step and reluctant resort to it is proper only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility. 13. In **Smt.Meera Bhanja v. Smt.Nirmala Kumari Choudhary : (1995) 1 SCC 170 : AIR 1995 SC 455 : 1995 KHC 737** a two Judge Bench of Apex Court held that review of proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order XLVII Rule 1 of Code of Civil Procedure. Power of review may be exercised on the discovery of new and important matter of evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made. Power of review cannot be exercised on the ground that the decision was erroneous on merits. It is also held that the power of review is not to be R.P.No.1064/2019 in 15 R.S.A.No.66/2010 confused with appellate power which may enable an Appellate Court to correct all manner of errors committed by the Subordinate Court. 14. Learned counsel for the respondent would also contend that the review petition has been filed only after the retirement of the Judge who pronounced the judgment. That has to be deprecated. In **Malthesh Gudda Pooja v. State of Karnataka and Others : 2011 KHC 4918 : (2011) 5 SCC** 330, while dealing with Section 122, Order 47 Rule 5 of the Code, it has been held by the Apex Court that review petition is to be heard by the same Judge as far as possible and every petition or application for review, re-consideration or correction of a judgment, decree or order or sentence shall be posted with before the original Bench which pronounced, made or passed such judgment, decree, order or sentence. 15. In the present case, the contention of the petitioners is that the judgment passed by this Court is liable to be reviewed since this Court allowed the appeal and dismissed the suit based on the dictum laid down in **Avvu** 's case, which according to him, R.P.No.1064/2019 in 16 R.S.A.No.66/2010 is not applicable to the present case because this is not a suit for injunction but it was a suit for declaration that the plaint schedule school is a thavazhi property and for consequential reliefs. True that the decision passed by this Court may be wrong but none of the argument now advanced by the petitioners in this review petition seem to have been advanced at the time of argument before the learned Single Judge when the appeal was originally heard. The impugned judgment has been passed by the court after hearing both sides. So, as per the settled position referred above, the power of review cannot be exercised even to correct an erroneous decision. Review proceedings are not by way of appeal and has to be strictly confined to the scope and ambit of Order 47 Rule 1. So, the contention of the Learned counsel that the finding of this Court applying the principles of **Avvu** 's case is not sustainable in law and that decision is also not applicable to the fact situation of this case and hence the impugned judgment in R.S.A is to be reviewed etc. is not sustainable in law. There is no reason forthcoming as to why the argument now advanced is not made before the learned Single Judge. The review now R.P.No.1064/2019 in 17 R.S.A.No.66/2010 sought for by the petitioner would require a re-appreciation of the evidence which is not contemplated as per the limited jurisdiction vested with this court while exercising the power of review. Hence I find that the petition for review filed by the petitioners is not sustainable in law and hence dismissed. (sd/-) **M.R.ANITHA, JUDGE** jsr True Copy P.S to Judge