Kerala High Court
Varkey Elias Aged 55 vs P.T. Thomas & S/O. Thomas Aged 44 on 19 January, 2010
Author: Harun-Ul-Rashid
Bench: Harun-Ul-Rashid
IN THE HIGH COURT OF KERALA AT ERNAKULAM
RP.No. 894 of 2009()
1. VARKEY ELIAS AGED 55 ,
... Petitioner
2. VARKEY VARGHESE, AGED 52, S/O. VARKEY
Vs
1. P.T. THOMAS & S/O. THOMAS AGED 44
... Respondent
2. P.T. SEBASTIAN, S/O. THOMAS, AGED 49 A
3. K.T. CHACKO, S/O. THOMAS, AGED 44 YEARS
4. JOSEPH, S/O. THOMAS, AGED 43 YEARS,
5. MATHEW THOMAS, S/O. THOMAS, AGED 39
6. MATHEW JOHN, S/O. JOHN,
For Petitioner :SRI.K.RAMAKUMAR (SR.)
For Respondent :SRI.JACOB ABRAHAM
The Hon'ble MR. Justice HARUN-UL-RASHID
Dated :19/01/2010
O R D E R
HARUN-UL-RASHID,J.
--------------------------
R.P.NO.894 of 2009 in
R.S.A.NO.606 OF 2009
--------------------------
DATED THIS THE 19TH DAY OF JANUARY, 2010
O R D E R
This Court by judgment dated 2/7/2009 dismissed the appeal in limine. Apart from raising the grounds touching the merits of the case, the learned Senior Counsel appearing for the review petitioners brought to my attention para 18 of the judgment in O.S.No.241/1999, wherein the court below heavily relied on Ext.A1, which is the relevant pages of the road register and Ext.X1 report of the Village Officer. The learned Senior Counsel submitted that the judgment sought to be reviewed discloses patent errors of law apparent on the face of record. According to him, placing reliance heavily on Ext.A1 extract of road register for accepting the case set up by the plaintiffs has caused injustice to the review petitioners, that Ext.A1 is subsequently detected to be a fabricated document and that the -2- R.P.No.894/09 fact finding courts wrongly relied on the said document to arrive at the question as to whether the disputed road is a public road or not. The learned counsel also pointed out that in view of the clear disclosures to the courts below by the Investigating Officers and in view of the criminal actions now pending in respect of such forgery and criminal fabrication, the matter requires re-consideration on merits. According to him, this is a fit case for remand to the trial court for considering the issues afresh.
2. In the affidavit filed in support of I.A.No.2686/09 it is pointed out that the conduct of the respondents in fabricating the document and placing reliance on such document by the courts below in arriving at the findings in the judgments passed by the fact finding courts has resulted in manifest injustice and therefore the decree passed by the court below mainly on the basis of Ext.A1 road register is likely to be reversed in second appeal. The learned counsel further pointed out that the vigilance -3- R.P.No.894/09 officers had, pursuant to the order of this Court and the Enquiry Commissioner and Special Judge, investigated the fabrication of the said document and confirmed the alleged fabrication and had forwarded the recommendations to the learned Munsiff, Devikulam and the Judicial First Class Magistrate, Adimali for initiation of actions including prosecution under law. These facts are stated in the affidavit filed in support of I.A.No.2686/09. The review petitioner also produced certified copies of the police report dated 8/7/09, FIR in Crime No.548/08 of Adimali Police Station, the order dated 13/7/09 of the Judicial First Class magistrate, Adimali granting bail to the said persons and the certified copy of the report dated 23/3/09 submitted by the Sub Inspector of Police,Adimali to the Munsiff's Court, Devikulam.
3. Considering all these materials and considering the fact that the fact finding courts had given much emphasis and reliance on Ext.A1 document, I find that the second appeal -4- R.P.No.894/09 requires a fair hearing. In the circumstances stated above and for the intervening developments, I am of the view that the dismissal of the appeal in limine causes substantial injury and injustice to the review petitioners.
In the result, the review petition is allowed. The judgment dated 2/7/2009 rendered by this Court in the second appeal is recalled.
HARUN-UL-RASHID, JUDGE.
kcv.
-5- R.P.No.894/09