In this regular second appeal concerning connected civil suits, the court examined arguments regarding res judicata and estoppel arising from the dismissal of a related suit as not pressed. Rejecting these contentions and finding no substantial question of law, the appeal was dismissed.
The Second Appeal having no substantial question of law arising is dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT :
THE HONOURABLE MR. JUSTICE V.RAMKUMAR
TUESDAY, THE 9TH DECEMBER 2008 / 18TH AGRAHAYANA 1930
RSA.No. 1245 of 2008()
---------------------AS.121/1997 of DISTRICT COURT, KOZHIKODE OS.142/1994 of SUB COURT, QUILANDY
APPELLANTS/APPELLANTS 2 AND 5 IN A.S.121/1997/DEFENDANTS 2 &10 IN SUIT
BY ADV. SRI.N.SUBRAMANIAM
SRI.M.S.NARAYANAN
R.S.A. No. 1245/2008
: 2:
AANTHOORAVALAPPIL HOUSE, -DO-
RESPONDENTS 7 TO 9/RESPONDENTS 9 TO 11 IN A.S./DEFENDANTS 7, 8 & 9:-
RESPONDENTS 10 & 11/APPELLANTS 3 & 4 IN A.S./DEFENDANTS 3 & 5:-
ADV. SRI.BIJU ABRAHAM FOR R2-6
SRI.B.G.BHASKAR FOR R6
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 09/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
V. RAMKUMAR , J.
========================== R.S.A. No. 1245 of 2008
==========================
Dated this the 9th day of December, 2008.
JUDGMENT
Defendants 2 and 10 in O.S. No. 142 of 1994 on the file of
the Sub Court, Quilandy are the appellants in this Second Appeal. The said suit instituted by the respondents herein was one for a declaration that the three resolutions passed in the meetings held on 12.06.1994, 14.08.1994 and 05.09.1994 are illegal and invalid and for a perpetual injunction restraining the 2nd defendant A.N. Gopinathan from functioning as the Manager of the Ashram school and restraining the third defendant from acting as the President of a charitable society by name Sree Vasudeva Ashram. The suit was tried along with O.S. No. 28 of 1996 which was originally filed as O.S. No. 181 of 1994 before the Munsiff's Court, Quilandy and subsequently transferred to the Sub Court. O.S. No. 28 of 1996 was filed by the said Gopinathan (1st appellant herein) styling himself as the General Secretary of Sree Vasudeva Ashramam against the 1st plaintiff in O.S. No. 142 of 1994 and others for a perpetual injunction restraining the 1st
R.S.A. No. 1245 of 2008 : 2:
plaintiff from interfering with the management of the society and its properties. Both suits were jointly tried and O.S. No. 142 of 1994 was treated as the leading case. On 27.02.1997, the trial court decreed O.S. No. 142 of 1994 and dismissed O.S. No. 28 of 1996. Apart from decreeing O.S. No. 142 of 1994, the trial court also directed the election of the Managing Committee of the society to be conducted by appointing a Senior Advocate of that Bar as the Commissioner for conducting the election. Accordingly an election was conducted and before the newly elected office bearers could assume charge of their office, appeals were filed against the common judgment and decree as A.S. No. 121 of 1997 against the judgment and decree in O.S. No. 142 of 1994 and A.S. No. 120 of 1997 against the judgment and decree in O.S. No. 28 of 1996 and a stay also was obtained. With the result, the newly elected office bearers could not assume charge. Subsequently, on 30.09.1999, the District Court, Kozhikode disposed of the appeals by setting aside the decrees passed in both suits and remanding the case to the trial court for fresh disposal and also permitting the plaintiffs in O.S. No. 142 of 1994 to
R.S.A. No. 1245 of 2008 : 3:
implead the newly elected members. Against the order in A.S. No. 121 of 1997, the plaintiffs in O.S. No. 142 of 1994 filed C.M.A. No. 14 of 2000 and against the order in A.S. No. 120 of 1997, the plaintiffs in O.S. No. 142 of 1994 filed C.M.A. No. 15 of 2000. When C.M.A. No. 15 of 2000 came up for hearing, the appellants therein got the C.M. Appeal dismissed as not pressed on 22.11.2006. Subsequently, on 19.06.2007, C.M.A. No. 14 of 2000 came up for hearing before this Court and it was allowed and the lower appellate court was directed to decide A.S. No. 121 of 1997 afresh without a remand. Subsequently, as per the impugned judgment and decree dated 28.01.2008, the lower appellate court has dismissed the appeal A.S. No. 121 of 1997 confirming the decree passed by the trial court in O.S. No. 142 of 1994. It is the said judgment and decree which are assailed in this Second Appeal.
R.S.A. No. 1245 of 2008
: 4:
appellants as well as the learned counsel appearing for the respondents who had lodged caveat in this appeal.
The 1st plaintiff in O.S. No. 142 of 1994 by getting C.M.A. No. 15 of 2000 dismissed as not pressed, has allowed the
decree dismissing O.S. No. 28 of 1996 to be set aside as was
R.S.A. No. 1245 of 2008 : 5:
done by the appellate court on 30.09.1999 and therefore it will operate as res judicata as against the other appeal. At any rate, it would amount to estoppel as held in Konath Mohammed Master v. Munsiff, Tirur & others - AIR 1981 Kerala 220 even if it be on account of a bona fide mistake as was held in Athanasius College Association v. State of Kerala - 1983 KLT (SN) 17. With the dismissal of C.M.A. No. 15 of 2000 as not pressed, the court below should not have proceeded with O.S. No. 142 of 1994 as the dismissal of C.M.A. No. 15 of 2000 would operate as resjudicata.
“ It was argued that the two suits were tried jointly and a common judgment was pronounced and in view of dismissal of C.M. A No. 15/2000 the order of remand so far as it relates to O.S. No. 28/1996 has become final and conclusive and as such the findings in O.S. No. 28/1996 will operate res judicata. O.S. No. 28/1996 is a suit filed by the Ashram against four persons for an injunction restraining defendants in that suit from trespassing into the property or interfering with the administration of the day today affairs of the Ashram. That suit was dismissed by the trial curt. The lower appellate court did not consider any of the points raised in that case on its merits. It set aside the decree and judgment and
R.S.A. No. 1245 of 2008
: 6:
remanded the case. In C.M.A. No. 15/2000 that order of remand was challenged. On account of the dismissal of C.M. Appeal that order of remand has become final. The decree passed in O.S. No. 28/1996 was set aside. There is no finding in that suit so as to operate as res judicata.”
R.S.A. No. 1245 of 2008 : 7:
is now late in the day for the appellant to assail the judgment based on estoppel.
R.S.A. No. 1245 of 2008 : 8:
questions of law formulated in the memorandum of appeal also
do not arise for consideration in this Second Appeal which is
accordingly dismissed.
Dated this the 9th day of December, 2008.
V. RAMKUMAR, JUDGE.
rv
3 issues framed by the court
Whether dismissal of a connected suit as not pressed operates as res judicata in the jointly tried leading suit.
Whether there is estoppel where issues in a connected suit remained undecided upon remand.
Whether the Second Appeal raises any substantial question of law warranting interference.
Colour shows how this judgement treated each authority
Konath Mohammed Master v. Munsiff, Tirur & othersReferred¶61
Konath Mohammed Master v. Munsiff, Tirur & others - AIR 1981 Kerala 220 · Who else cites this
Athanasius College Association v. State of KeralaReferred¶61
Athanasius College Association v. State of Kerala - 1983 KLT (SN) 17
1 provisions across 1 enactments
A.N. GOPINATHAN
SRI.VASUDEVA ASHRAM
V. RAMKUMAR
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
