Kerala High Court
Kovalam Hotels Private Limited vs Unknown
Author: Thomas P. Joseph
Bench: Thomas P.Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH
MONDAY, THE 19TH DAY OF MARCH 2012/29TH PHALGUNA 1933
RSA.No. 215 of 2006 (A)
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AS.3/1999 of SUB COURT,NEYYATTINKARA
OS.482/1996 of I ADDL.MUNSIFF COURT,NEYYATTINKARA
APPELLANT(S)/ADDL. APPELLANT NO.3:
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KOVALAM HOTELS PRIVATE LIMITED,
THIRUVANANTHAPURAM, REP. BY THE GENERAL MANAGER
KOVALAM HOTELS, THIRUVANANTHAPURAM.
BY ADV. SRI.G.S.REGHUNATH
RESPONDENT(S)/RESPONDENTS & APPELLANTS 1 AND 2/PLAINTIFFS & 1ST AND
2ND DEFENDANTS:
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1. DEVAKI, D/O.ANANDAVALLY,
SINDU SADANAM, MURIYANVILA, KOVALAM BEACH
KOVALAM P.O.
2. BINDHUMOL, RESIDING AT DO. DO.
D/O.DEVAKI.
(*)3. INDIAN TOURIST DEVELOPMENT CORPORATION,
NEW DELHI, REP. BY ITS GENERAL MANAGER
INDIAN TOURIST DEVELOPMENT CORPORATION (ITDC)
NEW DELHI. (DELETED)
4. THE GENERAL MANAGER, ITDC,
KOVALAM, ASOK BEACH RESORT ITDC, KOVALAM (PO)
VIZHINJAM.
(*)RESPONDENT NO.3 IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE
APPELLANT AS PER THE ORDER DATED 19.3.2008 IN IA NO.704/2008.
ADV. SRI.R.S.KALKURA FOR R1 & R2
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON
19-03-2012, ALONG WITH RSA. 349/2006, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
THOMAS P. JOSEPH, J.
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R.S.A. Nos.215 & 349 of 2006
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Dated this the 19th day of March, 2012.
JUDGMENT
These appeals are filed by appellant obtaining leave of this Court, challenging the common judgment and decree of learned Sub Judge, Neyyattinkara in A.S.Nos.3 of 1999 and 2 of 1999 respectively arising from common judgment and decree of learned1st Additional Munsiff, Neyyattinkara in O.S.Nos.482 of 1996 and 743 of 1996.
2. Respondents 1 and 2/plaintiffs filed O.S.No.482 of 1996 against the Indian Tourist Development Corporation (for short, "the ITDC") and its General Manager, initially for a decree for prohibitory injunction against construction of granite wall without fixing boundary between plaint A and B schedules and later amended as one for declaration of right of easement by prescription over plaint C schedule pathway. Respondents 1 and 2 claimed that plaint A schedule belongs to the 1st respondent as per patta No.B4.1082/1979 dated 23.07.1981. They claimed that they are residing in plaint A schedule and conducting an ayurvedic centre. Plaint B schedule is the property on the west of plaint A schedule. Plaint C schedule is a pathway described as having a width of 10 feet and length of 34 metres, stated to be originating from the Kovalam first approach road, passing through plaint B schedule and reaching plaint A schedule.
RSA Nos.215 & 349/2006 2
3. The ITDC and its General Manager who are the defendants in the suit contended that 1st defendant/ITDC has 18.11.20 hectors in R.S.No.7/1 of Vizhinjam Village and that the ITDC constructed approach road through the said property. They contended that no other person has right over the said property and that while so, 2nd respondent/plaintiff No.2 made a request as per letter dated 08.07.1996 (according to the learned counsel for appellant, the date is wrongly stated in the written statement) to permit her take vehicles through the approach road. That request was rejected. Thereon respondents 1 and 2 made an attempt to trespass into the property of defendants1 and 2.
4. Claiming a decree for prohibitory injunction against causing obstruction to the user of the first approach road referred to in O.S.No.482 of 1996, respondents 1 and 2 filed O.S.No.743 of 1996 describing the said first approach road as plaint C schedule and property of respondents 1 and 2 and defendants as plaint A and B schedules. That suit was also resisted by defendants 1 and 2.
5. It is seen from the copy of B diary that the suits were ordered to be tried jointly and came up for trial in the list on 02.06.1998. 1st respondent was present. Defendants 1 and 2 filed application to remove the case from the list. That application was dismissed. The 1st respondent was examined as PW1 and Exts.A1 to A3 and Exts.C1 to C2(a) were marked. Evidence was closed and the case was posted on 04.06.1998. That day the suits were decreed in favour of respondents 1 and 2.
RSA Nos.215 & 349/2006 3
6. With the present appellant also as additional appellant, defendants 1 and 2 challenged the common judgment and decree in A.S.Nos.2 and 3 of 1999. In those appeals, they produced certain documents to be received in evidence vide I.A.No.213 of 2005. The documents produced are a letter dated 03.05.1996 (allegedly) sent by the proprietor, Gopal's Ayurvedic Beach Resort (said to be the 2nd respondent) to the Manager, Vigilance & Security, ITDC, Kovalam seeking permission to take vehicles through the parking area to Gopal's Ayurvedic Beach Resort situated near Ganapathi Temple. The other document produced is the cover in which the said letter was (allegedly) sent.
7. Learned Sub Judge dismissed I.A.No.213 of 2005 by a separate order dated 22.02.2005 for want of compliance with the conditions for admitting additional evidence as per Order XLI Rule 27 of the Code of Civil Procedure (for short, "the Code"). The appeals were also dismissed upholding the common judgment and decree of the trial court. It is thus that the appellant has, obtaining special leave preferred these appeals.
8. Following substantial questions of law are framed:
i. Was the lower court justified in denying opportunity to the defendant in producing their evidence as the defendant is a Government of India organisation?
RSA Nos.215 & 349/2006 4
ii. Is not the lower court bound to consider the specific contention in the written statement that the description of plaint schedule properties are absolutely wrong and mischievous?
iii. Have the plaintiffs pleaded and proved easement by prescription as provided under law?
iv. Is the appellate court justified in dismissing the petition for adducing additional documentary evidence regarding a document which is specifically pleaded in the written statement itself?
v. Is not the order dated 22.02.2005 on I.A.No.213 of 2005 illegal, improper and wrong?
vi. Are the lower court justified in granting the decree to the plaintiff without giving an opportunity to the defendants to prove their case?
vii. Have the lower courts correctly understood the burden of proof while granting a decree in favour of the plaintiff?
viii. Are not the decree and judgment of lower court on the basis of exparte commission report and plan without even examining the commissioner illegal and unsustainable?
RSA Nos.215 & 349/2006 5
9. It is contended by the learned counsel for appellant that it is after disposal of the suits by trial court that shares of the ITDC were purchased by appellant and that now shares of ITDC have been purchased by appellant. It is contended that all the relevant documents in support of contentions raised by defendants 1 and 2 in the suit were at Delhi at the time the cases were taken up for trial in the list and hence defendants 1 and 2 were constrained to file application to remove the cases from the list seeking one month time to get down the documents. It is submitted that the said request was rejected, evidence of respondents 1 and 2 was recorded and two days thereafter, decree was granted in favour of respondents 1 and 2. It is also submitted by the learned counsel that relevant documents which would disprove the case of respondents 1 and 2 regarding prescriptive right were produced in the first appellate court with a request to receive the same in evidence. But that request was not allowed, not to say that a remand of the cases was allowed in favour of appellant. Learned counsel has referred to me the documents produced in the first appellate court to contend that if those documents are allowed to be introduced in evidence, that will support the case of defendants 1 and 2 which the appellant is supporting. It is also contended by the learned counsel that even on the face of averments in the plaint where at one stage it is stated that the first approach road is a PWD road, respondents 1 and 2 could not have got a decree based on a plea of easement by prescription.
RSA Nos.215 & 349/2006 6
10. Learned counsel for respondents 1 and 2 contended that no attempt was made to produce the documents now pressed into service in the trial court and that even the order of trial court rejecting I.A.No.213 of 2005 on 22.02.2005 was not challenged in appropriate proceeding. Learned counsel has invited my attention to paragraph 13 of the judgment of first appellate court where reference is made to the evidence on record and contention raised by defendants 1 and 2 and their failure to produce the relevant documents in the first appellate court at the appropriate time.
11. True that the request for remand is being made in the year, 2012,in a suit filed in the year, 1996 and in the Second Appeals filed in the year, 2006. But I find from the copy of B diary that when the case came up for trial in the list on 02.06.1998, there was an application from defendants 1 and 2 to remove the cases from the list (to grant them one month time as learned counsel submits). But that request was rejected and evidence of respondents 1 and 2 was recorded. I am inclined to think that defendants 1 and 2 could have been granted some time to produce their documents. Learned counsel for respondents 1 and 2 pointed out that PW1 was not even cross-examined by counsel for defendants 1 and 2. But, it is replied that for cross-examination, the relevant documents were not with the counsel and that it was for production of the documents that time was sought for.
RSA Nos.215 & 349/2006 7
12. I must notice that though not in the trial court, defendants 1 and 2 had produced the documents in the first appellate court with a request to receive the same as additional evidence. Assuming that the conditions for receiving additional documents were not complied, first appellate court could have considered whether the matter could be sent back to the trial court for fresh decision after giving defendants 1 and 2 and the appellant (impleaded as additional appellant) opportunity to adduce evidence. That was not done and appeals were disposed of by judgment dated 31.03.2005. In short, the judgment and decree of the courts below rested on the evidence let in by respondents 1 and 2 alone.
13. Having regard to the circumstances stated above, I am inclined to think that notwithstanding the length of time that has elapsed, appellant should be given an opportunity to implead itself (if impleadment is necessary) and adduce its evidence. But, it can only be on terms of heavy cost. For, it was the responsibility of defendants 1 and 2 to produce the relevant documents on time before the case was taken up in list. It is not as if the cases were included in the list all on a sudden, by surprise and defendants 1 and 2 were denied an opportunity to adduce evidence. These Second Appeals were filed in the year, 2006 and almost six years have now elapsed. Failure of defendants 1 and 2 to produce the relevant documents on time is not due to any fault of respondents 1 and 2. They have fighting the litigation since long. Hence they are to be compensated for the expenses they have incurred during last so many years fighting the case at various levels.
RSA Nos.215 & 349/2006 8
14. Having regard to the circumstances stated, I am inclined to allow the request for remand on condition of payment of `35,000/- as cost in each case to respondents 1 and 2.
15. The substantial question of law raised as to whether sufficient opportunity was given to the appellant and defendants 1 and 2 to adduce evidence is answered as above. Other questions are not required to be answered in view of the decision I have arrived at. I make it clear that it will be open to the appellant to seek impleadment in the suit if such a course is necessary. I also make it clear that if so advised it is open to the respondents 1 and 2 to amend their pleadings suitably. There will be an interim order restraining the appellant and other contesting defendants if any from causing any obstruction to respondents 1 and 2 using the disputed roads and taking vehicles through it to the plaint A schedule until disposal of the suits The trial court shall dispose of the suits untrammelled by the said direction issued by this Court.
Resultantly these Second Appeals are allowed as under:
i. Judgment and decree of learned Sub Judge, Neyyattinkara in A.S.Nos.2 and 3 of 1999 and of learned Additional Munsiff, Neyyattinkara in O.S.Nos.482 and 743 of 1996 are set aside on condition that appellant pays/deposits in this Court for payment to respondents 1 and 2 cost of `.35,000/- (Rupees thirtyfive thousand only) in each appeal on or before 04.04.2012.
ii. On compliance of the above condition O.S.Nos.482 and 743 of 1996 will stand remitted to the trial court for fresh decision after giving RSA Nos.215 & 349/2006 9 opportunity to the appellant for its impleadment in the suit, (if that is required), file written statement and produce its evidence. Respondents 1 and 2 will also get opportunity to amend their pleading (if so advised) and adduce further evidence, if any.
iii. Trial court after giving sufficient opportunity to both parties as above stated shall dispose of the suit as expeditiously as possible having regard to the fact that the suits are of the year, 1996.
iv. It is made clear that in case the condition above stated for payment/deposit of cost is not complied, these appeals will stand dismissed in confirmation of the judgment and decree of the first appellate court.
v. On the suits stand remitted as aforesaid, parties shall appear in the trial court on 12.04.2012.
Registry shall send the records forthwith to the trial court. All pending interlocutory applications will stand dismissed.
THOMAS P.JOSEPH, Judge.
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