Thirunelloor Sreevisakhapuram Devaswam v. Chackochan

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN & THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN THURSDAY, THE 26TH DAY OF OCTOBER 2017/4TH KARTHIKA, 1939 FAO.No. 163 of 2017 () ----------------------IA NO.413/2017 IN A.S.40 OF 2014 ON THE FILE OF HE ADDITIONAL DISTRICT COURT-III, ALLEPPEY APPELLANT(S): ------------ THIRUNELLOOR SREEVISAKHAPURAM DEWASWAM, THIRUNELLOOR.P.O,PALLIPPURAM VILLAGE,CHERTHALA TALUK, ALAPPUZHA DISTRICT,PIN-688541,REPRESENTED BY ITS PRESIDENT. BY ADVS.SRI.C.S.MANU SRI.S.K.PREMRAJ RESPONDENT(S): -------------- CHACKOCHAN, S/O.OUSEPH,AGED 75 YEARS,NADUVILEMURI HOUSE, THIRUNELLOOR.P.O,PALLIPPURAM VILLAGE,CHERTHALA TALUK, ALAPPUZHA DISTRICT,PIN-688541. R1 BY ADV. SRI.T.JAYAKRISHNAN R1 BY ADV. SRI.R.KRISHNAKUMAR (CHERTHALA) THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 26-10-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **“C.R.”** ## **P.N. Ravindran & Devan Ramachandran, JJ.** **- - - - - - - - - - - - - - - - - - - - - -- - - F.A.O.No.163 of 2017 - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 26[th] October, 2017** ## **JUDGMENT** ## **P.N.Ravindran, J.** This appeal arises from the order passed by the Court of the Additional District Judge-III, Alappuzha on 9.6.2017 in I.A.No.413 of 2017 in A.S.No.40 of 2014 which in turn arose from the decree and judgment passed by the Court of the Subordinate Judge of Cherthala in O.S.No.175 of 2010. The appellant is the defendant therein. The brief facts of the case are as follows: 2. The respondent herein as plaintiff instituted O.S.No.175 of 2010 in the Court of the Subordinate Judge of Cherthala praying for a decree allowing him to realise from the defendant devaswom, the sum of Rs.1,03,500/- together with interest and costs. He had in the plaint averred that he had on 12.5.2004 deposited in the festival fund of the defendant devaswom, the sum of Rs.1,00,000/- and the defendant had issued a receipt for the same. It is stated that later, the defendant received the sum of Rs.30,000/- on 13.3.2007 and a further sum of Rs.20,000/- on 16.12.2007 from the plaintiff as deposit. The plaint proceeds to state that though the sum of Rs.50,000/- was paid back on 24.2.2005, in spite of demands, the defendant devaswom has FAO 163/2017 2 not repaid the balance sum of Rs.1,00,000/-. The plaintiff had in the plaint claimed the sum of Rs.1,03,500/- comprised of the sum of Rs.1,00,000/- and interest thereon at 12% per annum from September, 2010 till the date of the plaint, together with future interest on the sum of Rs.1,03,500/- at 12% per annum from the date of suit till realisation, as also the costs of the suit. 3. Upon receipt of summons, the defendant devaswom entered appearance and filed a written statement resisting the suit. The defendant denied having received the sum of Rs.1,50,000/- from the plaintiff. After the defendant filed its written statement, the plaintiff filed I.A.No.1396 of 2011 under Order XI Rules 1 and 15 read with section 151 of the Code of Civil Procedure, for an order directing the defendant devaswom and its Secretary Sri Raveendran to disclose the names of the new Secretary and Treasurer of the defendant devaswom and also to produce documents proving the election and assumption of office by the new Secretary and Treasurer. Such a relief was sought in view of the averment in the written statement that Raveendran and Sivadasan who are described in the plaint as the Secretary and Treasurer respectively of the defendant devaswom, are not the Secretary and Treasurer of the defendant devaswom. 4. When I.A.No.1396 of 2011 came up for consideration on 30.11.2011, the court below directed the defendant to file an affidavit FAO 163/2017 3 and disclose the details called for and for that purpose the application was adjourned to 23.2.2012. On 23.2.2012 it was adjourned to 4.4.2012 and thereafter to 7.7.2012. An affidavit sworn to by Chandrappan who is described in the plaint as the President of the defendant devaswom was filed on 6.7.2012 wherein he had averred that the persons named in the plaint as the Secretary and Treasurer of the defendant devaswom are not its office bearers. He had also averred that the Secretary in charge is one Sivadasan and that at that point of time there was no Treasurer. Later, one V.R.Prasannan had sworn to an affidavit dated 3.7.2013 wherein it is stated that he is the President of the defendant devaswom, that its Secretary is one Vijayan S/o.Damodaran and the Treasurer is Baiju, S/o.Parameswaran. 5. When I.A.No.1396 of 2011 came up for consideration on 11.9.2013, in view of the inconsistent averments in the aforesaid affidavits, the court below directed the defendant devaswom to produce documents showing the names of the office bearers for the relevant period, viz. 2009-2010. The defendant thereupon caused an affidavit dated 4.11.2013 to be filed by V.R.Prasannan who claimed to be the President of the defendant devaswom, wherein he had averred that during 2009-2010 the President was Chandrappan, the Vice President was Sajeev, the Secretary was N.Raveendran and Treasurer was Jayadevan. In paragraph 5 he had also stated that though a new FAO 163/2017 4 committee has taken over the administration and management of the devaswom, the former office bearers have not handed over the documents which were in their custody. He had in paragraph 6 averred that the former office bearers had informed him that the documents in their possession have been produced in another case. 6. The plaintiff thereupon filed I.A.No.37 of 2014 under Order XI Rule 21 read with Section 151 of the Code of Civil Procedure for an order striking off the defence of the defendant. The plaintiff had in the affidavit filed in support of the said application inter-alia averred as follows: - “2. The suit is for realisation of money. I filed I.A.No.1396 of 2011 for production of documents but the defendant has not produced the documents yet, as directed by the court. In these circumstances, in view of the fact that the persons representing the defendant has not produced the documents as directed by the court, the defence pleaded in their written statement may be struck out.” 7. The trial court allowed the said application by order passed on 23.1.2014. By that order, the trial court struck off the defence raised by the defendant. The order passed by the trial court on 23.1.2014 allowing I.A.No.37 of 2014 reads as follows: “Objection filed. Heard. I.A.No.1396/2011 was filed on 28.9.2011 and this court gave direction on 30.11.11 to the respondent to produce the FAO 163/2017 5 document. The respondent filed affidavit on 4.11.2013 stating that the document showing details of appointment of the present and periodical office bearers of defendant/devaswom are produced in some case. Neither the number of case nor the name of court are not seen averred in the affidavit. Finally this court on 11.9.13 gave further direction to produce the required documents but so far they are not produced. Hence this petition filed under Order XI R.21 C.P.C. by plaintiff to strike out defence of respondent/defendant. In the objection to this IA this respondent stated that the required documents are not available. Thus the respondent's affidavit in the main stands not true and they are lacking bonafides with regard to the documents. Thus wilful obstinacy on the part of defendant/respondent for obeying the direction given to produce the document is well seen - to invoke the power as provided under Order XI R.21 C.P.C. And the w.s. filed by defendant is struck off from the file. See AIR 1978 SC 1436” 8. After the defence was struck off, the trial court decreed the suit by the judgment delivered on 31.1.2014. The judgment delivered by the trial court on 31.1.2014 decreeing the suit reads as follows: “Suit for money. 2. Plaint averments in brief are as follows:- The defendant devaswom received Rs.1,00,000/- on 12.05.2004 as deposit for its festival fund from the plaintiff and issued a receipt for the same on its letter head. Subsequently, the defendant received Rs.30,000/- on 13.03.2007 and Rs.20,000/- on 16.12.2007 from the plaintiff as deposit and it paid back Rs.50,000/- on 24.02.2005. When plaintiff FAO 163/2017 6 requested defendant to pay back the total amount in September 2010 it did not repay the same. Hence the above suit was filed to realise an amount of Rs.1,03,500/- (Rupees One Lakh Three thousand and Five hundred only) with interest at the rate of 12% per annum from the date of suit till realisation from defendant and its assets. Defendants filed written statement strongly denying the allegations in the plaint. Plaintiff filed IA 1396/11 to furnish details of the official bearers of devaswom for the period 2009-2010. But they did not produce the same and filed contradictory affidavits. Hence IA 37/2014 filed by plaintiff to strike out the defence and it was allowed and thereby the defendants were not in the party array. Plaintiff filed ex-parte proof affidavit and Ext.A1 to A5 were marked. On going through the pleadings in the plaint and averments in the proof affidavit coupled with Ext.A1 to A5, I am satisfied that plaintiff has entitled to get a decree for realisation of Rs.1,03,500/- (Rupees One Lakh Three thousand and Five hundred only) from defendants and their assets. In the result, the suit is decreed with costs allowing the plaintiff to realise an amount of Rs.1,03,500/- (Rupees One Lakh Three thousand and Five hundred only) with interest at the rate of 12% per annum from the date of suit till the date of decree and thereafter interest at the rate of 6% per annum till realisation from defendants and their assets.” 9. The defendant did not challenge the order passed by the trial court on I.A.No.37 of 2014 striking off its defence by filing an appeal, as provided under Order XLIII Rule 1(f) of the Code of Civil Procedure. Instead, challenging the judgment decreeing the suit, the defendant FAO 163/2017 7 filed A.S.No.40 of 2014 in the Court of the Additional District Judge III, Alappuzha wherein inter-alia it had contended that the trial court erred in striking off its defence. The said appeal was entertained, notice was issued to the plaintiff and an interim order staying the execution of the decree passed by the trial court was passed. When A.S.No.40 of 2014 came up for final hearing, the appellant/defendant filed I.A.No.204 of 2017 under Order XXIII Rules 1 and 3 of the Code of Civil Procedure for permission to withdraw the appeal, reserving liberty with it to file it in the proper court. The President of the defendant devaswom had in the affidavit filed in support of the said application averred that he has been advised by his counsel that a revision petition ought to have been filed before the appellate court (meaning thereby this court) challenging the order passed by the trial court striking off the defence and that it is necessary for a just and proper adjudication of the dispute. The court below considered the said application and allowed it by order passed on 22.3.2017, in the following terms: “Counter affidavit filed. Heard both sides. I am satisfied that the appeal would fail because of certain inherent defect or formal defect in it. So also the liberty sought for is to be granted. Or else irreparable injury would be caused to the petitioner. In the result the petition is allowed, the appeal is dismissed as withdrawn with liberty to file fresh appeal in the very same cause of action. No costs.” 10. The appellant thereupon filed I.A.No.413 of 2017 under FAO 163/2017 8 Order 47 Rule 1 of the Code of Civil Procedure seeking a review of the order passed by the appellate court on 22.3.2017 on I.A.No.204 of 2017. The defendant devaswom had in I.A.No.413 of 2017, averred as follows: “The review petitioners are the appellants in A.S.No.40/2014 and the petitioners in I.A.No.204/2017. The above said IA 204/2017 filed by the appellants seeking withdrawal of appeal with a liberty to file a fresh appeal before the Honourable High Court of Kerala and on that petition, petitioner filed the petition under Order 23 rule 1 and 3 by mistake and an order was passed on 22.3.2017 in IA No.204/17. The petitioners herein wanted to return the file of appeal from this court with an intention to file a fresh one before the Honourable High Court of Kerala. Being highly aggrieved by the said order dated 22.3.2017 the petitioners prefer this memorandum of review through their counsel Salini S.Kumar, Advocate, Cherthala on the following amongst other.” The appellate court below allowed the said application by the order impugned in this appeal and ordered that the memorandum of appeal in A.S.No.40 of 2014 be returned for presentation before the proper court. The said order is under challenge in this appeal filed under Order XLIII Rule 1(w) of the Code of Civil Procedure. 11. The averments in the affidavit filed in support of I.A.Nos.204 of 2017 and the averments in I.A.No.413 of 2017 disclose that the counsel appearing for the appellant in the appellate court had advised FAO 163/2017 9 the appellant that the order passed by the trial court striking off the defence raised by the defendant has to be challenged by way of a revision petition in this court. The relief sought in I.A.No.204 of 2017 was however different. The relief sought was to permit the appellant to withdraw the appeal reserving liberty with it to file an appeal in the proper court. Nobody had a case that the appeal filed by the defendant in the court below was not maintainable in that court. The plaintiff had not raised a plea that the appeal is not maintainable. Going by the provisions contained in Section 13 of the Kerala Civil Courts Act, 1957, A.S.No.40 of 2014 was maintainable before the District Court. From the affidavit filed by the President of the defendant devaswom in support of I.A.No.204 of 2017, it is evident that the defendant was advised to independently challenge the order striking off its defence by way of a revision petition or an appeal in this court. It is true that Order XLIII Rule 1(f) of the Code of Civil Procedure provides for an appeal from an order under Order XI Rule 21 of the of the Code of Civil Procedure. Learned counsel appearing for the defendant appears to have advised the defendant that in such circumstances, unless the order striking off its defence is independently challenged, the defendant cannot successfully prosecute the appeal from the decree. We are afraid, the opinion given by the learned counsel for the appellant is not in accordance with the law laid FAO 163/2017 10 down by the Apex Court in **Satyadhyan Ghosal and others v. Smt.Deorjin Debi and another** (AIR 1960 SC 941). The Apex Court has in the said decision, after a survey of the relevant statutory provisions and the case law on the point, held as follows: “14. In the code of 1859, S. 363 after laying down that no appeal shall lie from any order passed in the course of a suit and relating thereto prior to a decree provided "but if the decree be appealed against, any error, defect or irregularity in any such order affecting the merits of the case or the jurisdiction of the court may be set forth as a ground of objection in the memorandum of appeal. 15. When the code of 1877 made provisions in Chapter 43 for appeal against certain orders, S. 591 thereof provided "Except as provided in this chapter, no appeal shall lie from any order passed by any court in the exercise of its original or appellate jurisdiction" and went on to say "but if any decree be appealed against any error, defect or irregularity in any such order affecting the decision of the case, may be set forth as a ground of objecting in the memorandum of appeal". The position remained the same in the code of 1882. The present Code in its 105[th] section uses practically the same phraseology except that the word "any such order" has been substituted by "any order" and an additional provision has been made in the second subsection in respect of orders of remand. The expression "such order" in S. 591 gave rise to a contention in some cases before the Privy Council that S. 591 applied to nonappealable orders only. This contention was overruled by the Privy Council and that view was adopted by the Legislature by changing the FAO 163/2017 11 words "any such order" to "any order". As regards the orders of remand it had been held that under S. 591 of the Code a party aggrieved by an order of remand could object to its validity in an appeal against the final decree, though he might have appealed against the order under S. 588 and had not done so. The second sub-section of S. 105 precludes an appellant from taking, on an appeal from the final decree, any objection that might have been urged by way if appeal from an order of remand. 16. It is clear therefore that an interlocutory order which had not been appealed from either because no appeal lay or even though an appeal lay an appeal was not taken could be challenged in an appeal from the final decree or order. A special provision was made as regards orders of remand and that was to the effect that if an appeal lay and still the appeal was not taken the correctness of the order of remand could not later be challenged in an appeal from the final decision. If however an appeal did not lie from the order of remand the correctness thereof could be challenged by an appeal from the final decision as in the cases of other interlocutory orders. The second sub-section did not apply to the Privy Council and can have no application to appeals to the Supreme Court, one reason being that no appeal lay to the Privy Council or lies to the Supreme Court against an order of remand." 12. A learned single Judge of this court has in **Kerala State Electricity Board v. Pylee** (1979 KLT 647) after referring to the decision of the Apex Court in **Satyadhyan Ghosal** (supra), held as follows: FAO 163/2017 12 “3. A party to a proceeding before a subordinate court is not obliged to question every order passed therein before a superior court as and when the same is passed. He can, so far as very many orders are concerned, wait till the proceeding terminates and final decision is rendered therein, and when, on being aggrieved by the final decision, he challenges it before the superior court, also can canvass the correctness of any order passed by the subordinate court, if the same has affected the final decision. Such are orders which constitute only a step towards the final decision or the final order and do not have the force of a decree. This is so, whether an appeal lies from such orders or not, provided if it is an appealable order, no appeal had been preferred therefrom. An order of remand from which an appeal lies is an exception to this rule. See _Mharajah Moheshur Singh v. Bengal Government_ (1865) 7 Moo. Ind. App.283) and _Satyadhyan v. Smt.Deorajin Debi_ (AIR 1960 SC 941). These principles find expression in S.105 of the Code of Civil Procedure, 1908 so far as appellate jurisdiction of the superior court is concerned, and in my view, these wholesome general principles would with much more force govern revisional jurisdiction of the superior court in relation to nonappealable final decisions of the subordinate courts. 4. A preliminary finding on an issue which turns out to be insufficient for final disposal of the proceeding is as much a necessary step towards its final disposal as when the same is sufficient for final disposal, for while in the latter case the proceeding is disposed of solely in accordance with the preliminary finding, in the former, the other issues are tried and decided because the final decision cannot be rested on the FAO 163/2017 13 preliminary finding. The decision in _Pichu Ayyangar v. Ramanuja_ (AIR 1940 Mad. 756) supports the view that a preliminary finding entered can be challenge before the superior court in an appeal against the final order or decree. In that case the trial court over-ruled the defendant's preliminary objection that the court had no power to frame a scheme for which the suit had been instituted. The High Court in revision upheld this objection, and also dismissed the suit itself. Leach C.J. On behalf of the Division Bench held that the order in revision was only an interlocutory order falling under Section 105(1) of the Code, and the correctness of the same can be challenged in appeal against the decree passed by the trial court since that order affected the decision of the lower court dismissing the suit. In _Radha Krishna v. Natmal Babna_ (AIR 1963 Raj. 193) the question arose whether a preliminary order holding that proceedings under S.33 of the Arbitration Act, 1940 is not barred by limitation can be impugned in an appeal against the final decision filed under S.39 of that Act, and it was held that it can be. This decision further said that as laid down in _I.Swarupnarain v. Gopi Nath_ (AIR 1953 Raj. 137) (F.B.) S.115 of the Code would not be attracted to such an order since the same can be challenged in an appeal preferred from the final decision wherefore it cannot be said to be a case decided 'in which no appeal lies thereto'.” 13. In the light of the binding decision of the Apex Court in **Satyadhyan Ghosal** (supra), we hold that it was not necessary for the appellant to independently challenge the order passed by the trial FAO 163/2017 14 court striking off its defence. On the terms of Section 105(1) of the Code of Civil Procedure, the defendant could have challenged the order striking off its defence as well, in the appeal A.S.No.40 of 2014 filed by it from the decree and judgment passed by the trial court. The appellate court also, in our opinion, lost sight of this crucial and significant aspect when it allowed I.A.No.204 of 2017 in A.S.No.40 of 2014 and granted leave to the appellant to file a fresh appeal and later by the impugned order, directed the memorandum of appeal to be returned for presentation in the proper court. The appellate court has in the impugned order observed that the memorandum of appeal should have been returned for want of jurisdiction and therefore there was a procedural error. As stated earlier, the plaintiff had no case that the appeal filed by the defendant was not maintainable in the lower appellate court. Going by the valuation of the plaint and the date of institution of the suit, the appeal filed by the defendant was maintainable in the District Court. We are told that pursuant to the impugned order, the memorandum of appeal was returned to the appellant along with certified copies of the decree and judgment. Learned counsel for the appellant/defendant also handed over to us for perusal, the records thus returned by the appellate court. In the view that we have taken, we are of the opinion that the appellant is entitled to succeed and to have the appeal filed by it heard and decided on the FAO 163/2017 15 merits by the District Court. We accordingly allow the appeal, set aside the impugned order and direct the Court of the Additional District Judge-III, Alappuzha to take back the memorandum of appeal in A.S.N.40 of 2014 to file and the interlocutory applications, if any, as also certified copies of the decree and judgment in O.S.No.175 of 2010 produced along with it and hear and dispose of the appeal on the merits. In order to enable the court below to act as directed above, the appellant/defendant shall through its counsel re-present the memorandum of appeal in the court below on or before 20.11.2017. The parties shall appear before the court below through counsel on 21.11.2017. The court below shall on that day take up the appeal, fix a date for hearing and disposal of the appeal and shall endeavour to dispose of the appeal before 31.01.2018. It will be open to the appellant to move the appellate court for appropriate interim orders, pending disposal of the appeal. ## **(P.N. Ravindran, Judge)** ## **(Devan Ramachandran, Judge)** ## **kav/**