State of Kerala v. Stephen Poonnen and Paul Poonnen

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM CR ``` ``` PRESENT ``` ``` THE HONOURABLE THE CHIEF JUSTICE MR. A.J.DESAI ``` ## **`&`** ``` THE HONOURABLE MR.JUSTICE V.G.ARUN ``` ``` FRIDAY, THE 24[TH] DAY OF MAY 2024 / 3RD JYAISHTA, 1946 ``` ``` RP NO. 405 OF 2024 ``` ``` AGAINST THE JUDGMENT DATED 23.11.2023 IN WA NO.154 OF 2017 OF HIGH COURT OF KERALA ``` ## **`REVIEW PETITIONER(S)/APPELLANTS IN WA:`** - **`1 STATE OF KERALA, REPRESENTED BY SECRETARY,FOREST & WILDLIFE DEPARTMENT, SECRETARIAT,THIRUVANANTHAPURAM, PIN - 695001`** - **`2 THE CUSTODIAN OF WESTED FORESTS OLAVAKKODE, PIN - 678002`** - **`3 THE DIVISIONAL FOREST OFFICER SOUTH WAYANAD DIVISION,KALPETTA, PIN - 673121`** - **`4 THE FOREST RANGE OFFICER MEPPADY,WAYANAD, PIN - 673577`** - **`5 THE VILLAGE OFFICER MUPAINAD VILLAGE,WAYANAD DISTRICT, PIN - 673581 BY ADV T.P.SAJAN, SPECIAL GOVERNMENT PLEADER (FORESTS)`** ## **`RESPONDENT(S)/RESPONDENTS IN WA:`** - **`1 STEPHEN POONNEN RESIDING AT NO.3 VILLA DELMAR, SARJAPUR ROAD, BANGALORE, PIN - 560034`** - **`2 PAUL POONNEN S/O P.V.POONNEN, RESIDING AT VILLA A16-SREEVASTHA ENCLAVE,G.N.MILL POST , METTUPALAYAM ROAD, COIMBATHORE, PIN - 641021`** ``` BY ADV M.C.JOHN ``` ``` THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 24.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` RP NO. 405 OF 2024 ``` ``` -2- ``` ## **O R D E R** ## **C.R.** ## **A.J.DESAI, C.J.** This Review Petition is filed by the appellants / State authorities in the writ appeal, seeking to review the judgment dated 23.11.2023, by which, this Court dismissed the appeal and confirmed the decision of the learned Single Judge. 2. It is the case of the appellants that there is an error with regard to the observation in paragraph No.8 of the judgment that no documents were produced by the appellants to support their claim that 12.95 hectares is vested forest. Learned Counsel for the appellants would submit that the document notifying the 12.95 hectares as vested forest was produced along with an application for accepting additional documents, which was not considered by the bench while deciding the appeal and hence, the review petition may be allowed and the appeal heard afresh. 3. On the other hand, the learned Counsel appearing for the respondents would submit that the additional document was not produced before the learned Single Judge. I.A.No.90 of 2017 filed by the State authorities for accepting additional documents was never pressed and hence, the State authorities cannot rely the document in ``` RP NO. 405 OF 2024 ``` ``` -3- ``` the absence of its acceptance. 4. We have heard the Advocates appearing for respective parties. 5. It is an admitted fact that the document, which the State authorities intends to rely upon, was never produced before the learned Single Judge from 2009 to 2015 while the writ petition was pending consideration. Hence, there was no occasion for the learned Single Judge to deal with the said document and therefore, it cannot be said that the learned Single Judge has committed error in allowing the writ petition. 6. It is equally important to note that, when an appellant intends to rely upon documents which were never been produced before the learned Single Judge, he should establish before the appellate Court that there were sufficient reasons for not producing the documents and those reasons were beyond the appellant’s control. Pertinently, no order was sought on I.A.No.90 of 2017 under which the document was produced in the instant appeal, either at the time of admission or final hearing of the appeal. 7. This writ appeal is filed under Section 5 of the Kerala High Court Act, 1958. The procedure for filing the appeals from decisions ``` RP NO. 405 OF 2024 ``` ``` -4- ``` of Single Judges is stipulated in Rule 159 of the Kerala High Court Rules, 1971, which is extracted hereunder; _**159. Appeals from decisions of Single Judges.—**_ (1) The procedure prescribed for appeals in Order XLIA of the Code, excluding Rule 2 thereof, shall as far as may be, be followed in appeals from decisions of Single Judges in writ matters: Provided that in Writ Appeals against judgments dismissing Original Petitions in limine copies produced under Rule 147(3) shall also be served on the respondents along with the notice of Writ Appeal: Provided further that no decree need be drawn up in Writ Appeals: Provided also that in appeal from decision of a Single Judge dismissing Writ Petition in limine, the appellant shall produce, on notice being ordered in the Writ Appeal, as many copies of the Writ Petition as there are respondents in the appeal, forthwith unless the Court otherwise directs. (2) More persons than one may join in one Writ Appeal as appellants in whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist, whether jointly, severally, or in the alternative, where, if such persons present separate Writ Appeals any common question of law of fact would arise provided that each person joining in such Writ Appeal shall pay the court-fee payable under Article 3(iii)A(2)(c) of ``` RP NO. 405 OF 2024 ``` ``` -5- ``` Schedule II of the Kerala Court Fees and Suits Valuation Act as if he had brought a separate Appeal. 8. As evident from a reading of Rule 159 (1), the procedure for filing appeals prescribed in Order XLI A of the Code of Civil Procedure, except Rule 2 thereof , is to be followed while filing appeals from decisions of Single Judges in writ matters. In this context, it is pertinent to note that Order XLIA was incorporated by way of an amendment to the First Schedule of the Code, vide Notification dated 07/04/1959 issued by the High Court of Kerala. By virtue of Order XLIA Rule 1, the Rules contained in Order XLI would apply to appeals in the High Court of Kerala, with the modifications contained in the Order. Being so, When a party produces documents in a writ appeal, Order XLI Rule 27 of Code of Civil Procedure, 1908, would come into play. Order XLI Rule 27 of Code of Civil Procedure, 1908, reads as under: ## _**27. Production of additional evidence in Appellate Court**_ (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if - (a) the court from whose decree the appeal is preferred has refused to admit evidence which ought to ``` RP NO. 405 OF 2024 ``` ``` -6- ``` have been admitted, or [(aa) the party seeking to produce additional evidence, establishes that not-withstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or] (b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined. (2) Whenever additional evidence is allowed to be produced by an Appellate Court, the court shall record the reason for its admission. 9. The above provisions makes it clear that, parties are barred from producing additional evidence at the writ appeal stage, whether oral or documentary, except under the circumstances postulated in Rule 27 of Order XLI. We have gone through the decision of a Division Bench of this Court in _**Special Tahsildar**_ _**(L.A.) v. Mathew 2013 (3) KLT 701**_ , which is squarely applicable, particularly the observations in paragraph No.4 therein. 10. As far as the case at hand is concerned, other than filing an ``` RP NO. 405 OF 2024 ``` ``` -7- ``` interlocutory application seeking production of a document at the appellate stage, the appellants did not take any effort to get the document accepted in evidence. In such circumstances, the Division Bench did not commit any mistake by observing that, no document was produced by the appellants in support of their claim that 12.95 Hectares, in the Coffee plantation belonging to the respondents, is vested forest. In the result, the review petition is dismissed. ``` Sd/- ``` ``` A.J.DESAI CHIEF JUSTICE ``` ``` Sd/- ``` ``` V.G.ARUN JUDGE ``` uu ``` RP NO. 405 OF 2024 ``` ``` -8- ``` ## **`APPENDIX OF RP 405/2024`** ``` RESPONDENT ANNEXURES Annexure R1A true copy of the G.O.(Rt) No.305/2013 (F and WLD) dated 21.08.2013 issued by the first Review petitioner with Typed copy. ``` ``` Annexure R1(a) ``` ``` True copy of the reply dated 18.08.2023 along with translation together with the survey sketch furnished by the Public Information Officer ```