V.S. Sukumaran & ABY Abraham v. Thomas Samuel

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **THURSDAY, THE 13TH DAY OF FEBRUARY 2020 / 24TH MAGHA, 1941** ## **RSA.No.844 OF 2012** **AGAINST THE JUDGMENT AND DECREE DATED 21.03.2012 IN AS NO.69/2009 OF DISTRICT COURT, PATHANAMTHITTA IN OS NO.101/2007 OF MUNSIFF'S COURT, PATHANAMTHITTA DATED 30.03.2009** ## **-----** ## **APPELLANT/APPELLANT/PLAINTIFF:** **1 V.S.SUKUMARAN, S/O. LATE SANKARAN, VIJI BHAVAN, THEKKEMALA.P.O, VANCHITHRA MURI, KOZHENCHERRY TALUK.** ## **ADDL. APPELLANT** > **ADDL.A 2 ABY ABRAHAM S/O M.C ABRAHAM,AGED 40 YEARS, MUNDAPLAKAL HOUSE, THEKKEMALA(P.O), KOZHENCHERRY.** **[ADDL. A2 IS IMPLEADED AS ADDL. APPELLANT NO. 2 AS PER THE ORDER DATED 16/08/2017 IN I.A 1755/2017]** **BY ADVS. SRI.T.KRISHNANUNNI (SR.) SRI.S.A.SAJU SRI.K.C.KIRAN SMT.MEENA.A. SRI.VINOD RAVINDRANATH** ## **RESPONDENT/RESPONDENT/DEFENDANT:** **THOMAS SAMUEL, S/O. LATE P.K. SAMUEL, THOTTATHIL HOUSE, THEKKEMALA.P.O, VANCHITHRA MURI, KOZHENCHERY, PIN - 689 654.** **R1 BY ADV. SRI.V.PHILIP MATHEW** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 13.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **SATHISH NINAN, J.** ## **= = = = = = = = = = = = = = = = = = RSA No.844 of 2012** ## **= = = = = = = = = = = = = = = = = = Dated this the 13[th] day of February, 2020** ## **JUDGMENT** The suit for prohibitory injunction against reducing the width of a pathway and from obstructing its user, was dismissed by the courts below. Aggrieved, the plaintiff is in appeal. 2. Plaint item no.2 is claimed to be a way being used by the general public for access from the Kozhenchery-Pathanamthitta road on the west, proceeding towards the east and leading to a Panchayat road situated on the north-eastern side. The portion of plaint item no.2 way which is situated on the eastern side of plaint item no.3 that belongs to the defendant, is scheduled as plaint item no.4. The injunction sought for is to restrain the defendant from encroaching into plaint item no.4 and from reducing the width of the way. The way is claimed to have a width of approximately 10 feet. 3. The defendant denied the existence of plaint RSA No.844 of 2012 :- 2 :- item no.4. The defendant claimed that a 2 feet wide way was formed by him through the eastern portion of his property for his access. The alleged user by the general public was denied. The defendant relied on an earlier decree in OS 488/1992 wherein it was held that the way in question has a width of only 2 feet. 4. The trial court held against the plea that plaint item no.2 is a public pathway. It was also held that the width of the way, at the portion of plaint item no.4 was only 2 feet and that the attempt of the plaintiff is only to widen the way. The findings were confirmed in appeal. 5. Heard Sri.T.Krishnanunni, learned Senior Counsel for the appellant-plaintiff and Sri.V.Philip Mathew, learned counsel for the respondent-defendant on the following substantial question of law:- “Will the exparte decree in a representative suit operate as resjudicata against a person who is not an eo-nominee defendant in that suit?” RSA No.844 of 2012 :- 3 :- 6. OS 488/1992 was an earlier suit filed by the defendant herein against one Sivaraman and C.M.Philip for a prohibitory injunction to restrain them from cutting open a way through his property which is described in the present suit as plaint item no.3. The suit was filed under Order I Rule 8 of the Code of Civil Procedure. The suit was decreed finding that the pathway situated on the eastern side of the plaintiff's property has a width of only 2 feet. The said way on the eastern side was claimed to be set apart by the plaintiff therein, who is the defendant in the present suit, from his property. The Commissioner deputed in the present suit describes plaint item no.2 as having a width of approximately 10 feet throughout, even through plaint item no.4, which is the portion of the pathway which lies on the eastern side of the plaintiff's property plaint item no.3. The courts below relied on the proceedings in the earlier suit OS 488/1992 to find that the disputed pathway has only a width of 2 feet. RSA No.844 of 2012 :- 4 :- 7. Learned Senior Counsel for the appellantplaintiff would contend that the suit OS 488/1992 was decreed ex parte on the failure of the defendants to contest the same. In terms of Explanation-VI to Section 11, the decree in a representative suit will bind persons interested though not eo-nominee parties, only in a case where “persons litigate bona fide”. The defendants therein, having chosen to remain ex parte and not to contest, it could not be said that, there was a bona fide litigation regarding the right of the defendants therein, which is common for the present plaintiff also. Therefore, the decree and judgment in the earlier suit is of no consequence, is the submission. I am unable to agree with the same. 8. It admits of no cavil that even an exparte RSA No.844 of 2012 :- 5 :- decree constitutes res judicata. The principle of res judicata enshrined in Section 11 of the Code of Civil Procedure, generally binds only the persons who are eo-nomine parties to the earlier suit. It is only by virtue of Explanation-VI to Section 11 that in representative suits, where rights are claimed in common, even the persons who are not eonomine parties are also made bound by the decree, treating them to be persons claiming under persons who are eo-nominee parties to the suit. A suit under Order I Rule 8 of the Code of Civil Procedure being a representative suit, the decree passed therein binds all who have a common interest. Merely because a suit is decreed ex parte, it does not take away its sting; it operates as res judicata. The defendant may remain exparte for a RSA No.844 of 2012 :- 6 :- variety of reasons which may vary from case to case. Such decree or the force of it needs to be avoided in a mode known to law, by showing that the same was not bona fide prosecuted, that rights were not represented, or that it was obtained by fraud or collusion and hence does not constitute res judicata. Merely because the defendant in a suit filed under Order I Rule 8 remained ex parte and the suit is decreed, the same does not take away its force and it does operate against the persons who are represented in the suit. If any other interpretation is adopted, the decree in such a suit can very well be defeated on the defendant remaining ex parte and a third party committing the acts sought to be prevented under the decree. Since he will not be bound by the decree, no proceedings RSA No.844 of 2012 :- 7 :- could be initiated against him. This will defeat the very purpose of the rule. Therefore, I am unable to endorse the submission of the learned Senior Counsel. The substantial question of law is thus answered against the appellant. 9. In the case at hand, though the defendant had set up the decree in the previous suit as a defence, no attempt is made to avoid the decree in any mode known to law. In his evidence, the plaintiff as PW1 has admitted that he had knowledge of the decree, in spite of which no attempt is made to avoid the same. Therefore, Ext.B3 decree operates against the plaintiff. As per Ext.B3 decree in OS 488/1992 it is evident that plaint item no.4 pathway in the present suit had a width of only two feet. The present claim against the RSA No.844 of 2012 :- 8 :- said decree cannot be entertained. 10. That apart, even dehors on a finding of res judicata, I find that on the evidence the findings of the Courts below are sustainable and the dismissal of the suit is only to be confirmed. Exts.B6 and B8 are the Commissioner's Reports prepared in the earlier suit OS 488/1992, during the trial stage and the execution stage respectively. The Commissioners who prepared the said reports have been examined as DWs.2 and 3 respectively. As is evident therefrom, the plaint item no.4 herein has only a width of 2 feet. The evidence of the Commissioners and their reports could not be discredited. Therefore, even on merits, the claim of the plaintiff that item no.2 way has a width of 10 feet throughout, including RSA No.844 of 2012 :- 9 :- the portion of plaint item no.4, fails. Both the courts below have appreciated the evidence and have come to a factual finding that plaint item no.4 had a width of only 2 feet. 11. As regards the plea that item 2 is a way used by the general public, the same is denied by the defendant. Though the pleading regarding the right is vague, irrespective of as to whether plaint item no.2 is claimed to be a public pathway or as a customary easement, apart from the oral testimony of plaintiff as PW1, there is absolutely no evidence to prove the nature of right. Therefore, there is no material to hold that it is a way used by the general public. 12. It also appears that the present suit is filed at a point of time when alleging violation of RSA No.844 of 2012 :- 10 :- the earlier decree OS 488/1992, execution proceedings were taken out by the defendant herein as EP 38 of 2007, telling upon the bona fides of the plaintiff. 13. The findings of the courts below are pure findings of facts and are based on materials. Merely because another view of the matter would be possible on a reappreciation of the evidence, this Court is not entitled to substitute the findings in exercise of jurisdiction under Section 100 of the Code of Civil Procedure. [See Navaneethammal v. Arjuna Chetty (1996) 6 SCC 166] . The appeal deserves only to be dismissed, and I do so. **Sd/SATHISH NINAN JUDGE** kns/- //True Copy// P.S. to Judge