Saneesh Jose and Biju Varghese v. Revenue Divisional Officer, Pala; District Collector, Kottayam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **THURSDAY, THE 18TH DAY OF MARCH 2021 / 27TH PHALGUNA, 1942** ## **W.P.(C) No.6575 OF 2021(V)** ## **PETITIONERS:** **1 SANEESH JOSE, AGED 33 YEARS, S/O. JOSE, PERUMBALLIKUNNEL, VAZHAKKULAM POST, MUVATTUPUZHA. 2 BIJU VARGHESE, AGED 51 YEARS, S/O. GEORGE, VELLAPPALLIL HOUSE, AVOLY POST, MUVATTUPUZHA. BY ADVS. SRI.MATHEW JOHN (K) SRI.MATHEW DEVASSI SRI.ABY J AUGUSTINE** ## **RESPONDENTS:** - **1 THE REVENUE DIVISIONAL OFFICER, PALA-686 575.** - **2 THE DISTRICT COLLECTOR, COLLECTORATE, KOTTAYAM DISTRICT-686 002.** ## **SMT.K.AMMINIKUTTY, SENIOR GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.6575 OF 2021(V) -2- ## **JUDGMENT** The petitioners have filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the 2[nd] respondent District Collector to dispose of Ext.P7 revision petition in a speedy manner. Ext.P7 revision petition is one filed by the petitioners under Rule 18(iv) of the Transfer of Registry Rules, 1966 against Ext.P6 order dated 03.12.2020 of the 1[st] respondent Revenue Divisional Officer, on an application made by Smt.Daisy Chacko and Shri.Chacko Devassia. The petitioners herein along with 5 others are arrayed as respondents in that appeal. 2. On 15.03.2021, when this writ petition came up for admission, this Court noticed that the affected parties, namely, Smt.Daisy Chacko and Shri.Chacko Devassia, who obtained Ext.P6 order, which is under challenge in Ext.P7 revision petition, are not made parties to this writ petition, though in the synopsis and also in the statement of facts, reference is made to 'the 4[th] respondent'. The learned counsel for the petitioners sought adjournment and accordingly, the matter was adjourned to 17.03.2021. 3. On 17.03.2021, when this writ petition was taken up for consideration, the learned counsel for the petitioners submitted W.P.(C) No.6575 OF 2021(V) -3- that the petitioners have already filed an interlocutory application. Registry was directed to incorporate that interlocutory application and list the writ petition today for consideration. 4. On 16.03.2021, the petitioners have filed I.A.No.1 of 2021 seeking an order to implead Smt.Daisy Chacko and Shri.Chacko Devassia, as additional respondents 3 and 4 and Shri.Jose Devassia, Shri.Mathew Devassia, Shri.Immanual Antony and Shri.Sunny Kurian as additional respondents 5 to 8. Paragraph 2 of the affidavit filed in support of the said interlocutory application reads thus; “2. The Above writ petition was posted for admission on 15.03.2021. This Hon'ble Court heard the matter and it was found that there are other parties in Ext.P7 proceedings and those parties are also required to be heard for a just disposal of the above writ petition. Therefore, this Hon'ble Court directed the petitioners to implead those parties as the additional respondents in the above writ petition. The additional respondents to be impleaded are 1. Daisy Chacko, Poovelil house, Neeloor, Kadanadu Village, 2. Chacko Devassia, Poovelil house, Neeloor, Kadanadu Village, 3. Jose Devassia, Poovelil House, Panathoor P.O., Hosdurg, Kasargodu, 4. Mathew Devasia, Poovelil House, Panathoor P.O., Hosdurg, Kasargodu, 5. Immanuel Antony, Kaipananickal House, Elikulam P.O., Kanjirapally and 6. Sunny Kurian, Kulathara House, Neeloor P.O., Kadanadu ## W.P.(C) No.6575 OF 2021(V) -4- Village.” 5. Heard the learned counsel for the petitioners and also the learned Senior Government Pleader appearing for the respondents. 6. Rule 148 of the Rules of the High Court of Kerala, 1971, deals with addition of parties. As per the said rule, all persons directly affected shall be made parties to the petition. Where such persons are numerous, one or more of them may with the permission of the court on application made of the purpose be impleaded on behalf of or for the benefit of all persons so affected; but notice of the Original Petition shall, on admission, be given to all such persons either by personal service or by public advertisement as the Court in each case may direct. 7. In paragraph 5 of the writ petition, it is alleged that the 4[th] respondent [sic:Shri.Chacko Devassia] has filed a complaint through his wife Smt.Daisy Chacko that the property obtained by him vide document No.2373 of 1988 of the Sub Registrar Office, Ramapuram has been wrongly mutated in the name of Mathew Pooveli and therefore, the proceedings leading to the said mutation may be cancelled. The 2[nd] respondent Tahasildar (LR) conducted an enquiry into that complaint and proceeded to cancel ## W.P.(C) No.6575 OF 2021(V) -5- mutation of the property in favour of the assignors of the petitioners, without notice to the affected parties. Shri.Chacko Devassia and his wife Smt.Daisy Chacko, who are the appellants before the 1[st] respondent Revenue Divisional Officer or Shri.Jose Devassia and three others, who are respondents 2 to 5 in that appeal, are not made parties to this writ petition. 8. In **Bharat Singh v. State of Haryana [(1988) 4 SCC 534]** the Apex Court held that, when a point which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter affidavit, as the case may be, the Court will not entertain the point. The Apex Court held further that there is a distinction between a pleading under the Code of Civil Procedure Code, 1908 and a writ petition or a counter affidavit. While in a pleading, i.e., a plaint or a written statement, the facts and not evidence are required to be pleaded, in a writ petition or in the counter affidavit not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to W.P.(C) No.6575 OF 2021(V) -6- ## it. 9. In **Narmada Bachao Andolan v. State of Madhya Pradesh [(2011) 7 SCC 639]** a Three-Judge Bench of the Apex Court held that, it is a settled proposition of law that a party has to plead its case and produce/adduce sufficient evidence to substantiate the averments made in the petition and in case the pleadings are not complete the Court is under no obligation to entertain the pleas. Pleadings and particulars are required to enable the court to decide the rights of the parties in the trial. Thus, the pleadings are more to help the court in narrowing the controversy involved and to inform the parties concerned to the question(s) in issue, so that the parties may adduce appropriate evidence on the said issue. It is settled legal proposition that as a rule relief not founded on the pleadings should not be granted. Therefore, a decision of a case cannot be based on grounds outside the pleadings of the parties. The object and purpose of pleadings and issues is to ensure that the litigants come to trial with all issues clearly defined and to prevent cases being expanded or grounds being shifted during trial. If any factual or legal issue, despite having merit, has not been raised by the parties, the court should not decide the same as the opposite counsel does not have W.P.(C) No.6575 OF 2021(V) -7- a fair opportunity to answer the line of reasoning adopted in that regard. Such a judgment may be violative of the principles of natural justice. 10. In view of the law laid down in the decisions referred to supra, the petitioners have to amend the statement of facts of this writ petition appropriately, in addition to mere filing of an application for impleadment, as sought for in I.A.No.1 of 2021. 11. The learned counsel for the petitioners would submit that the petitioners may be permitted to withdraw this writ petition, without prejudice to their right to file a fresh writ petition with appropriate pleadings and proper parties in the party array. Based on the above submission made by the learned counsel for the petitioners, this writ petition is dismissed as withdrawn, without prejudice to the aforesaid right of the petitioners. Sd/- **ANIL K. NARENDRAN JUDGE** bpr W.P.(C) No.6575 OF 2021(V) -8- ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** - **EXHIBIT P1 TRUE COPY OF THE DOCUMENT NO.177/1/2016 OF S.R.O. RAMAPURAM DATED 16.2.2016** - **EXHIBIT P2 A TRUE COPY OF THE DOCUMENT NO.180/1/2016 OF S.R.O. RAMAPURAM DATED 16.2.2016** - **EXHIBIT P3 A TRUE COPY OF THE NOTICE ISSUED BY THE 2ND RESPONDENT DATED 5.3.2018** - **EXHIBIT P4 A TRUE COPY OF THE PROCEEDINGS OF THE 1ST RESPONDENT DATED 6.1.2018** - **EXHIBIT P5 TRUE COPY OF THE JUDGMENT DATED 12.02.2020 IN WPC NO.13339/2018** - **EXHIBIT P6 TRUE COPY OF THE ORDER PASSED BY THE 1ST RESPONDENT DATED 03.12.2020** - **EXHIBIT P7 TRUE COPY OF THE REVISION PETITION FILED BY THE PETITIONERS BEFORE THE 2ND RESPONDENT DATED 19.01.2021** - **EXHIBIT P8 TRUE COPY OF THE CERTIFICATE ISSUED BY THE CHIEF MANAGER, SOUTH INDIAN BANK DATED 06.03.2021** - **EXHIBIT P9 TRUE COPY OF THE CERTIFICATE ISSUED BY THE CHIEF MANAGER, SOUTH INDIAN BANK DATED 05.03.2021** **RESPONDENTS' EXHIBITS: NIL**