Partly allowed

Anandaraj @ Santhosh v. Nattika Gramapanchaath

Kerala HC19 Jun 2017WA/1257/2017

Case brief

AI extract

What is this about?

The High Court of Kerala disposed of a writ appeal challenging the dismissal of a petition filed against a Panchayat. The court noted that the writ petition was an abuse of process due to a pending civil suit on similar facts. While agreeing the petition should have been dismissed, the court set aside the exemplary costs imposed.

What did the court decide?

Exemplary costs of ₹10,000 imposed in the previous order are set aside. The writ petition is otherwise dismissed.

Anandaraj @ Santhosh Vs Nattika Gramapanchaath — Property and Title | Kerala HC (2017)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE THE CHIEF JUSTICE MR.NAVANITI PRASAD SINGH & THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V

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MONDAY, THE 19TH DAY OF JUNE 2017/29TH JYAISHTA, 1939

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WA. No.1257 of 2017 () IN WP(C).16439/2017

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(AGAINST THE JUDGMENT IN WP(C) NO.16439/2017 DATED 30-05-2017.)

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APPELLANT(S)/WRIT PETITIONER :

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ANANDARAJ @ SANTHOSH, AGED 55 YEARS, S/O. KRISHNANKUTTY, THOPPIL HOUSE, P.O.NATTIKA BEACH, CHAVAKKAD THALUK, THRISSUR DISTRICT-680 566.

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BY ADVS.SRI.VINAY RAMDAS

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SMT.K.B.ANAMIKA SRI.VISHNUPRASAD NAIR

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RESPONDENT(S)/RESPONDENT :

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NATTIKA GRAMAPANCHAYATH, REP. BY SECRETARY, NATTIKA GRAMAPANCHAYATH, TRIPRAYAR, VALAPAD PO, CHAVAKAD TALUK, THRISSUR-680 567.

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BY ADV. SRI.K.B.GANGESH

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 19-06-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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NAVANITI PRASAD SINGH, C.J. &

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RAJA VIJAYARAGHAVAN V., J.

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W.A. No.1257 of 2017

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- - - - Dated this the 19^th day of June, 2017

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JUDGMENT

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Navaniti Prasad Singh, C.J.

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We have heard the learned counsel for the appellant/writ petitioner at length and with his consent, we are disposing of this appeal at this stage itself.

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This appeal has been filed being aggrieved by the judgment dated 30.05.2017 passed by the learned single Judge in W.P.(C) No.16439 of 2017 whereby, the writ petition was dismissed with exemplary costs of 10,000/-. ₹

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It appears that the appellant claims to have got settlement of some land under the provisions of the Kerala Land Reforms Act, 1963. He says that he is in possession of a sale certificate in respect of the said land. It appears that a part of that land is being used not only by the appellant, but by other adjacent property owners. It appears that Nattika Grama Panchayat resolved to broaden the

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WA.1257/17

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-:2:-

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road. This was objected to by the appellant, who filed O.S. No.449 of 2017 before the Munsiff's Court, Chavakkad. He sought injunction in which, notices have been issued. Pending the suit, he filed the instant writ petition and sought a declaration that the Panchayat had wrongly included the said land in its asset register and as such, the Panchayat be restrained from proceeding in the matter in any way. The learned single Judge held that once the writ petitioner had filed a suit, then filing a writ petition would be abuse of process. The writ petition was dismissed with exemplary costs.

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Learned counsel for the appellant submits that in the suit, the question of title was not raised. That was an issue raised in the writ petition. Hence, two proceedings were different. Our answer lies in Explanation (IV) to Section 11 of the Code of Civil Procedure. A party cannot say that he would not seek a relief in a pending suit which he could have asked or which he ought to have sought, and instead institute another proceeding. That is not permissible. Therefore, when there was a dispute between the appellant and the Grama Panchayat, all the disputes ought to have been raised and got decided before the civil court where the proceedings are instituted. There cannot be piecemeal trials in different forums.

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WA.1257/17

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-:3:-

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Thus, we are in agreement with the views of the learned single Judge that in the facts aforesaid, the writ petition was a misconceived remedy and it was rightly dismissed. However, we would like to observe that no finding of the learned single Judge on any issue except maintainability of the writ petition would be a finding of fact as against the appellant, for, the civil court would come to its own findings upon pleadings and evidence as brought before it.

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On behalf of the appellant, it is submitted that the appellant was only trying to secure his property. There was no mala fides involved. Accordingly, the exemplary costs imposed by the learned single Judge should be deleted.

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Having heard the learned counsel for the appellant as also the learned counsel for the respondent Panchayat, we are satisfied that it would not be proper in the facts and circumstances to impose the exemplary costs of 10,000/- as done by the learned single₹ Judge. To that extent, this appeal is allowed. The exemplary costs is set aside. Otherwise, the appeal merits no further consideration. The appeal thus, stands disposed of with opportunity to the

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-:4:-

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WA.1257/17

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appellant to raise all his grievance in the civil suit already instituted by him.

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Sd/Navaniti Prasad Singh, Chief Justice

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Sd/Raja Vijayaraghavan V., Judge

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krj.19/6

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/TRUE COPY/

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P.A. TO JUDGE

Anandaraj @ Santhosh v. Nattika Gramapanchaath

Case brief

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Anandaraj @ Santhosh v. Nattika Gramapanchaath

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