Partly allowed

Reji v. K.M.Poulose

Kerala HC15 Feb 2018OP(C)/235/2018

Case brief

AI extract

What is this about?

The Kerala High Court rejected the contention that the Special Court has exclusive jurisdiction over Malankara Church disputes. It held that civil courts retain concurrent jurisdiction, Section 92 of CPC was not attracted to the facts, and Section 10 CPC was inapplicable. The trial court was directed to proceed.

What did the court decide?

The impugned order dismissing the interlocutory application was upheld; other petitions were disposed of; the trial court directed to dispose applications within two weeks.

Reji Vs K.M.Poulose — Civil Procedure and Limitation | Kerala HC (2018)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT:

¶3

THE HONOURABLE MR. JUSTICE A.HARIPRASAD

¶4

THURSDAY, THE 15TH DAY OF FEBRUARY 2018 / 26TH MAGHA, 1939

¶5

OP(C).No. 235 of 2018

¶6

(AGAINST ORDER DATED 15.09.2017 IN IA NO.2835/2017 IN OS NO.315/2014 OF II ADDITIONAL SUBORDINATE JUDGE'S COURT, THRISSUR

¶7

PETITIONERS/PETITIONERS NO.4 TO 6/DEFENDANTS NO.4 TO 6:

¶8

1 REJI S/O. OUSEPH, NELLIKKAL HOUSE, P.O. CHUVANNAMANNU, THRISSUR DISTRICT.

¶9

2 SHAJI S/O. MATHAI, KARUTHEDATH HOUSE, P.O. CHUVANNAMANNU, THRISSUR DISTRICT. 3 GEORGE, S/O. ULAHANNAN, KOORUVELIL HOUSE P.O. CHUVANNAMANNU, THRISSUR DISTRICT.

¶10

BY ADVS.SRI.SAJAN VARGHEESE K. SRI.LIJU. M.P SRI.ABE RAJAN

¶11

RESPONDENTS/RESPONDENTS & PETITIONERS NO. 1 TO 3/PLAINTIFFS & DEFENDANTS NO.1 TO 3:

¶12

K.M.POULOSE, S/O. MATHAI, KARUTHEDATH HOUSE CHUVANNAMANNU, THRISSUR DISTRICT. 680652.

¶13

ELDOSE, S/O. POULOSE, KARUTHEDATH HOUSE CHUVANNAMANNU, THRISSUR DISTRICT.680652

¶14

FR. JOY T VARGHESE S/O. VARGHESE, THAIMOLATH HOUSE, MAROTTICHAL.P.O. THRISSUR DISTRICT.

¶15

OP(C).No. 235 of 2018 2

¶16

KURIAKOSE S/O. GEORGE, CHAKKALAKKATHEKUZHI HOUSE, KURIAKOSE MAR EUSEPHIOUS, YAKOBAYA SURIYANI SALEA (SABHA), BETHEL BISHOP HOUSE, PATTIKKAD.P.O. THRISSUR DISTRICT.680652 5. THOMAS MAR DIONYSINS S/O.MATHU, BASELIOUS THOMAS I, PUTHENCRUZE VILLAGE, ERNAKULAM DISTRICT.682302

¶17

R1 BY ADV. SRI.SINU.G.NATH R2 BY ADV. SRI.MANU GEORGE KURUVILLA

¶18

THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 06-02-2018 ALONG WITH O.P.(C) NO.3649 OF 2017 AND CONNECTED CASES,THE COURT ON 15.02.2018 DELIVERED THE FOLLOWING:

¶19

OP(C).No. 235 of 2018 (O)

¶20

APPENDIX

¶21

PETITIONERS' EXHIBITS EXHIBIT P1 TRUE COPY OF THE PLAINT IN OS NO 315/2014 ON THE FILE OF II ADDITIONAL SUBORDINATE JUDGE'S COURT EXHIBIT P2 TRUE COPY OF THE WRITTEN STATEMENT FILED IN EXHIBIT P1 SUIT EXHIBIT P3 TRUE COPY OF THE ORDER DATED 3.3.2017 PASSED IN SLP(C) NO. 16579/2013 ON THE FILE OF HONOURABLE SUPREME COURT OF INDIA EXHIBIT P4 TRUE COPY OF IA NO 2835/2017 IN EXHIBIT P1 SUIT EXHIBIT P5 TRUE COPY OF THE COUNTER AFFIDAVIT FILED IN EXHIBIT P4 EXHIBIT P6 TRUE COPY OF THE ORDER DATED 15.9.2017 PASSED IN EXHIBIT P4 APPLICATION.

¶22

RESPONDENTS' EXHIBITS NIL

¶23

//TRUE COPY//

¶24

A.HARIPRASAD, J.

¶25

O.P.(C) Nos.3649 of 2017, 3650 of 2017, 3656 of 2017 and 235 of 2018

¶26

Dated this the 15^th day of February, 2018

¶27

COMMON JUDGMENT

¶28

Common questions of law arising in these original petitions emanate from two suits filed before two different courts. Challenge in O.P. (C) No.235 of 2018 is against Ext.P6 order passed on Ext.P4 interlocutory application. In Ext.P4, the defendants prayed for return of the plaint involved in a Malankara Church dispute to be presented before the 1^st Additional District Court, Ernakulam (Special Court for trial of Malankara Church Cases) on the ground that the trial court, where Ext.P1 suit is laid, has no jurisdiction in the light of pronouncement by the Supreme Court of India in S.L.P.No.16579 of 2013. This prayer was rejected by the trial court with a cryptic order which reads thus:

¶29

“Heard. No notification or any order is produced to show that this court has no jurisdiction. Hence, this I.A. is dismissed.”

¶30

A verdict on the correctness of this order will eventually resolve the main dispute in the cases on hand.

¶31

O.P.(C) Nos.3649 of 2017, 3650 of 2017 and 3656 of 2017

¶32

arise out of O.S.No.629 of 2017 before the Court of Munsiff, Muvattupuzha. Ext.P1 is the copy of plaint produced in all the above cases. Defendants in

¶33

O.P.(C) Nos.3649 of 2017, 3650 of 2017, 3656 of 2017 and 235 of 2018 2

¶34

the suit are the petitioners herein.

¶35

Petitioner in O.P.(C) No.3649 of 2017 prays for consideration of Ext.P3 application before passing orders on Ext.P2 application. Ext.P3 is an application filed by the defendant disputing jurisdiction of the court to entertain the suit. Ext.P2 is an application filed by the plaintiff for a temporary injunction under Order 39 Rule 1 and Section 151 of the Code of Civil Procedure, 1908 (in short, “the Code”).

¶36

In O.P.(C) No.3650 of 2017, the relief sought for is to direct the Munsiff to frame a preliminary issue regarding maintainability of the suit for want of sanction under Section 92 of the Code and dismiss the suit as barred under Section 92. A prayer for stay of further proceedings in the above suit is also sought for.

¶37

In O.P.(C) No.3656 of 2017, the petitioners seek a direction to the trial court to consider Ext.P3 application filed under Section 10 of the Code requesting to say all further proceedings in the suit until final disposal of A.S.No.635 of 1997 pending before this Court, arising out of another case in respect of the same church.

¶38

Heard the learned counsel for the petitioners. Learned Senior Counsel and other counsel appearing for the contesting respondents are also heard.

¶39

On resolving the issues raised in O.P.(C) No.235 of 2018, most of the questions in the other original petitions can be easily decided.

¶40

O.P.(C) Nos.3649 of 2017, 3650 of 2017, 3656 of 2017 and 235 of 2018 3

¶41

As mentioned above, Ext.P4 application in O.P.(C) No.235 of 2018, filed by the defendants seeking return of the plaint for presentation before the 1^st Additional District Court, Ernakulam (Special Court), was refused as per Ext.P6 order. Learned counsel for the petitioners in all the cases contended that the 1^st Additional District Court, Ernakulam is a Special Court constituted for resolution of Malankara Church Cases and therefore, it has exclusive jurisdiction to decide the two suits involved in the original petitions. In order to appreciate these contentions, it will be profitable to consider the following aspects.

¶42

Ext.R1(a) in O.P.(C) No.3649 of 2017 is copy of the notification whereunder the Special Court for trial of Malankara Church Cases had been established. It reads thus:

¶43

“ GOVERNMENT OF KERALA.

¶44

Abstract.

¶45

Administration of justice – Special Court to try cases connected with Malankara Church disputes – setting up of ordered -

¶46

HOME (C) DEPARTMENT

¶47

G.O.Rt.1532/76/Home Dated, Trivandrum,30^th June, 1976. Read:-Letter No.D3-26645/75 dated 19.12.1975 from the Registrar of High Court.

¶48

O R D E R

¶49

The Registrar of High Court has recommended that one Additional Sessions Court may be established at Ernakulam exclusively for the trial of cases connected with Malankara Church disputes now pending in various courts of the state.

¶50

2. Government accept the recommendation and are

¶51

O.P.(C) Nos.3649 of 2017, 3650 of 2017, 3656 of 2017 and 235 of 2018

¶52

¶53

pleased to accord sanction for establishing a special court at Ernakulam with the following staff exclusively for trial of cases concerning Malankara Church disputes till the end of February, 1977.

¶54

_Additional District & Session Judge _	1 on Rs.1400/- - 1900
U.D. Clerk	1 on Rs.275 – 525
L.D.Clerks	2 on Rs.230 – 385
Stenographer	1 on Rs.240 – 540
Peons	3 on Rs.196 – 265

¶55

The expenditure will be met from the contingency fund initially to be recouped later by moving for a supplementary grant.

¶56

By order of the Governor,

¶57

S.NARAYANASWAMY,

¶58

SPECIAL SECRETARY.”

¶59

Ext.R1(f) is a judgment passed by a learned Single Judge of this Court in O.P.(C) No.863 of 2013. In that case, defendants 1 and 2 in an original suit filed before the District Court, Ernakulam challenged the competence of the court to receive a plaint in view of Section 15 of the Code and Section 11 of the Civil Courts Act, 1957 (in short, “the Act”). The suit was in respect of a Malankara Church dispute and prayed for reliefs such as restraining the defendants and their men from causing obstruction to the plaintiff in officiating as Vicar of the Church and exercising his spiritual and temporal rights therein. It was contended before this Court by the petitioners that in view of Section 15 of the Code and Section 11 of the Act, the court of lowest grade competent to entertain a suit was the Court

¶60

O.P.(C) Nos.3649 of 2017, 3650 of 2017, 3656 of 2017 and 235 of 2018 5

¶61

of Subordinate Judge, Muvattupuzha. At the most, the District Judge could have invoked his power under Section 24 of the Code to withdraw the suit from the competent court to the designated court for trial. It was contended on behalf of the petitioners that the notification mentioned above only empowered the designated court to try pending cases made over to it and on the face of Section 15 of the Code and Section 11 of the Act, the Special Court is not empowered to receive a plaint.

¶62

After considering various provisions and authorities on the point, it was held that it is well within the power of the District Court in its capacity as Principal Court of original civil jurisdiction to entertain a plaint and make it over to the designated court for trial and disposal. Ext.R1(f) was challenged before the Supreme Court in Special Leave Petition No.16579 of 2013. Ext.P6 in O.P.(C) No.3649 of 2017 is the order passed by the Supreme Court in the Special Leave Petition. It may be apposite to note that Ext.P7 in the above original petition is the information obtained by an Advocate from the Public Information Officer, High Court of Kerala, regarding the status of the Special Court. The information furnished as per Ext.P7 reads thus:

¶63

“Referring to the letter cited, it is informed that, “A Special Court to try cases connected with Malankara Church Disputes was constituted on the request of the High Court vide G.O.(Rt) No.1532/76/Home dated 30.06.1976. The Court was initially sanctioned

¶64

O.P.(C) Nos.3649 of 2017, 3650 of 2017, 3656 of 2017 and 235 of 2018

¶65

¶66

for a period till the end of February 1977. Continuance was granted to this Court from time to time and Vide:G.O.(P) No.853/81/Home Dated 3.04.1981, the continuance was extended till the end of February 1982. By this time the court and the Posts sanctioned therefore, had been in existence for over 5 years. As per the G.O.(P) No.64/77/Fin. Dated 19.2.1977 those posts continuously in existence for five years will be treated as permanent without further orders. This order has been issued by the Government without prejudice to the provisions regarding Governments' power of abolishing temporary or permanent posts. As per the above said Government Order, the Posts sanctioned for the Special Court hearing Malankara Church Dispute Cases had completed five years of existence by 31.05.1981. So the posts have become permanent. In view of that, the Court also may be deemed to have become permanent. No other orders declaring this Court as a permanent one, is available. Hence, the status of Special Court for the trial of Malankara Church Disputes is one of permanent nature with effect from 31.05.1981 and all disputes in the said matter is to be filed before the Special Court.”

¶67

Considering nature of the challenge against the judgment passed by the learned Single Judge in O.P.(C) No.863 of 2013, the Supreme Court made the following observations in the order passed in

¶68

O.P.(C) Nos.3649 of 2017, 3650 of 2017, 3656 of 2017 and 235 of 2018

¶69

¶70

Special Leave Petition No.16579 of 2013:

¶71

“ O R D E R

¶72

The only question in these matters is whether the Special Court has jurisdiction to deal with the disputes in the matters involved.

¶73

Learned counsel appearing for the respondent specifically pointed out to us a document being Annexure R-4 annexed to the petition which is a letter dated 05.09.2007 issued by the Public Information Officer on behalf of the High Court of Kerala.

¶74

From the said letter, it has been specifically stated that the status of the Special Court for the trial of dispute is one of permanent nature with effect from 31.05.1981 and all disputes has to be filed before the Special Court.

¶75

In view of the above, we do not find that there is any further challenge to be decided in the matter since the Special Court has the jurisdiction to decide the matter in terms of the order passed by the High Court.

¶76

Accordingly, we do not find any merit in these Special Leave Petitions which will support the cause of the petitioners.

¶77

Hence, the Special Leave Petitions are dismissed.”

¶78

Learned counsel appearing for the petitioners in all the cases

¶79

strongly contended on the basis of Ext.P6 order in Special Leave Petition No.16579 of 2013 that the Supreme Court has clearly observed that the Special Court has jurisdiction to decide the matter in terms of the order

¶80

O.P.(C) Nos.3649 of 2017, 3650 of 2017, 3656 of 2017 and 235 of 2018 8

¶81

passed by the High Court and therefore it has exclusive jurisdiction to receive a plaint and decide the matter in dispute.

¶82

Per contra, learned Senior Counsel and other counsel appearing for the respondents strongly opposed the submissions by contending that in the order passed by the Supreme Court on Special Leave Petition, Ext.P7 information furnished by the Public Information Officer of the High Court was referred only to dispose of the case. What was decided by the Supreme Court is that in the light of the observations in the information furnished, the Supreme Court did not find any further challenge to be decided in the matter since the Special Court too has jurisdiction to decide the case. It is the submission that neither Section 15 of the Code nor Section 11 of the Act was brought to the notice of the Supreme Court. And also the Supreme Court did not make any pronouncement to the effect that dehors the provisions the Special Court for trial of Church Cases has exclusive jurisdiction to try all such cases and no other civil court shall have jurisdiction to try the same. On a careful reading of Ext.P6 order in the Special Leave Petition, it can be seen that the Supreme Court, without going into other issues, found that the 1^st Additional District Court, Ernakulam (Special Court) has jurisdiction to decide the matter and therefore, the Special Leave Petition was dismissed. Every decision or order should be understood in the background of the facts and circumstances involved in each case. I do not find any reason to

¶83

O.P.(C) Nos.3649 of 2017, 3650 of 2017, 3656 of 2017 and 235 of 2018 9

¶84

hold that the Supreme Court in the above order has made a pronouncement that all the Malanakara Church Cases should be filed only before the Special Court for trial of Church Cases (1^st Additional District Court, Ernakulam) in exclusion of other courts. Such an argument will be preposterous.

¶85

This contention should be understood in the light of an elaborate judgment of the Supreme Court in Varghese v. St.Peter's & Paul's Syrian Orthodox Church (2017 (3) KLT 261) . On analyzing the facts and law threadbare and on a detailed discussion, the Supreme Court in paragraph 184 of the judgment concluded its findings. The pronouncement in P.M.A.Metropolitan v. Moran Mar Marthoma ((1995) Supp.4 SCC 286) was affirmed in Varghese 's case. In the light of points (i) to (xxviii) in paragraph 184 of the judgment, it can only be held that the declaration of law by the apex Court will bind all the courts and parties involved in the litigation. Further, the disputes in Malankara Churches cannot be decided by any court in the country ignoring the principles enunciated therein. It is therefore clear from the binding pronouncements in P.M.A.Metropolitan 's case and Varghese 's case that all the courts in the country can only decide the Malankara Church cases in accordance with the guidelines mentioned therein, thereby whittling down the exclusivity of the Special Court for decision of Malankara Church Cases.

¶86

¶87

O.P.(C) Nos.3649 of 2017, 3650 of 2017, 3656 of 2017 and 235 of 2018

¶88

Another point argued by the learned Senior Counsel is that the court was established only for trial of Malankara Church Cases. It is therefore contended that the notification (Ext.R1(a)) will not debar a party from filing a suit before a competent court. According to the learned Senior Counsel for the contesting respondents, the order passed by the Supreme Court in Special Leave Petition No.16579 of 2013 is only to the effect that the Special Court for Church Cases also has jurisdiction to try cases transferred to it. In the light of the pronouncements in P.M.A.Metropolitan 's case and especially in Varghese 's case, judgment in which was rendered subsequent to the order passed in Special Leave Petition No.16579 of 2013, I am of the view that by virtue of the notification though the Special Court gets jurisdiction to try cases relating to Malankara Church disputes, it does not exclude the jurisdiction vested in other civil courts under the provisions of the Code and the Act. Therefore, I find that no wrong is committed by the trial Judge in passing Ext.P6 order in O.P.(C) No.235 of 2018. The same principle applies to the contentions of the petitioners in other original petitions as well.

¶89

The notification constituting the Special Court specifically shows that the court was established for trial of Malankara Church Cases. It has been consistently held that trial in a civil case begins by framing issues. For the aforementioned reasons, I find no bar for any party to institute a suit involving Malankara Church dispute in a civil court having

¶90

O.P.(C) Nos.3649 of 2017, 3650 of 2017, 3656 of 2017 and 235 of 2018 11

¶91

jurisdictional competence. For the same reason, I find that there is no bar in passing interlocutory orders in such suits. However, this will not affect the right of parties to move for a transfer of the case by invoking Section 24 of the Code to the Special Court for trial of Malankara Church Cases as it has too jurisdiction to try such disputes.

¶92

Learned counsel for the petitioners in O.P.(C) Nos.3649 of 2017 and 3650 of 2017 vehementally argued that the suit itself is incompetent as the reliefs claimed therein will fall within the contours of Section 92 of the Code and the suit, being one instituted before a Munsiff's Court, is legally incompetent because that court cannot be regarded as principal civil court of original jurisdiction. No doubt, if the suit falls under Section 92 of the Code, certainly it will be incompetent for the reason that it was laid before a Munsiff's Court. Crucial question to be decided is whether the suit falls within Section 92 of the Code.

¶93

Learned counsel for the contesting respondents contended that going by the plaint averments and the reliefs sought for in the suit, it will be clear that it does not fall within Section 92 of the Code. Further, the reliefs claimed in the suit will not fall within Clauses (a) to (h) of Section 92(1) of the Code.

¶94

It is well settled law, that is reiterated in Parmatmanand Saraswati v. R.Tripathi (AIR 1974 SC 2141) , that only the allegations in

¶95

O.P.(C) Nos.3649 of 2017, 3650 of 2017, 3656 of 2017 and 235 of 2018 12

¶96

the plaint that should be looked into in the first instance to see whether the suit falls within the ambit of Section 92 of the Code. This principle was reiterated by this Court in Narayana Pillai v. Jyothi (1991 (2) KLT 458) . Quoting all the above decisions, a learned Single Judge of this Court in St.Mary's Church v. Saju ( ILR 2001 (2) Kerala 219) has held that for granting leave to sue under Section 92 of the Code, the court has to satisfy prima facie from the allegations made in the plaint, in order to decide whether leave to sue under Section 92 of the Code should be granted or not.

¶97

On going through the averments in Ext.P1 plaint, it is seen that the plaintiffs have approached the Munsiff's Court seeking personal reliefs. They have not alleged any breach of express or constructive trust created for public purposes of a charitable or religious nature and they have not sought for any direction for the administration of the church. Basic ingredients of Section 92 of the Code are not satisfied in this case. Therefore, I hold that the suit is properly laid before the Munsiff's Court.

¶98

In O.P.(C) No.3656 of 2017, the petitioners have requested for stay of O.S.No.629 of 2017 before the Munsiff's Court, Muvattupuzha till the disposal of A.S.No.635 of 1997 pending before this Court. According to the learned counsel for the petitioners, A.S.No.635 of 1997 arises out of judgment and decree in O.S.No.184 of 1977 on the file of the 1^st Additional

¶99

O.P.(C) Nos.3649 of 2017, 3650 of 2017, 3656 of 2017 and 235 of 2018 13

¶100

District Court, Ernakulam (Special Court) and the appeal is still pending. According to them, O.S.No.184 of 1977 and O.S.No.629 of 2017 are suits filed by invoking the provisions under Order I Rule 8 of the Code. It is therefore contended that the matter in issue in A.S.No.635 of 1997 is directly and substantially in issue in O.S.No.629 of 2017 and therefore, it has to be stayed under Section 10 of the Code.

¶101

Per contra, learned counsel appearing for the contesting respondents would contend that O.S.No.629 of 2017 is a suit instituted by the plaintiffs in their capacity as priests in the disputed Malankara Church and Ext.P1 plaint will reveal that they claimed entirely different and personal reliefs in respect of the Church. It is also submitted by the learned counsel that the cause of action in Ext.P1 has no connection to the the cause of action involved in O.S.No.184 of 1977. Reliance is placed on paragraphs 7 to 10 in Indian Bank v. Maharashtra State Co-operative Marketing Federation Ltd. ((1998) 5 SCC 69) to contend that Section 10 of the Code has no application to the facts and circumstances in this case. Relevant paragraphs are excerpted hereunder:

¶102

“ 7 . Section 10 of the Code prohibits the Court from proceeding with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit provided other conditions mentioned in the section are also satisfied. The word 'trial' is no doubt of a very wide import as

¶103

O.P.(C) Nos.3649 of 2017, 3650 of 2017,

¶104

¶105

3656 of 2017 and 235 of 2018

¶106

pointed out by the High Court. In legal parlance it means a judicial examination and determination of the issue in civil or criminal court by a competent Tribunal. According to Webster's Comprehensive Dictionary, International Edition, it means the examination, before a tribunal having assigned jurisdiction, of the facts or law involved in an issue in order to determine that issue. According to Stroud's Judicial Dictionary (5th Edition), a “trial” is the conclusion, by a competent tribunal, of questions in issue in legal proceedings, whether civil or criminal. Thus in its widest sense it would include all the proceedings right from the stage of institution of a plaint in a civil case to the stage of final determination by a judgment and decree of the Court. Whether the widest meaning should be given to the word “trial” or that it should be construed narrowly must necessarily depend upon the nature and object of the provision and the context in which it used.

¶107

8 . Therefore, the word "trial" in Section 10 will have to be interpreted and construed keeping in mind the object and nature of that provision and the prohibition to “proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit.” The object of the prohibition contained in Section 10 is to prevent the courts of concurrent jurisdiction from simultaneously trying two parallel suits and also to avoid inconsistent findings on the matters in issue. The provision is in

¶108

O.P.(C) Nos.3649 of 2017, 3650 of 2017, 3656 of 2017 and 235 of 2018

¶109

¶110

the nature of a rule of procedure and does not affect the jurisdiction of the court to entertain and deal with the latter suit nor does it create any substantive right in the matters. It is not a bar to the institution of a suit. It has been construed by the courts as not a bar to the passing of interlocutory orders such as an order for consolidation of the latter suit with the earlier suit, or appointment of a Receiver or an injunction or attachment before judgment. The course of action which the court has to follow according to Section 10 is not to proceed with the 'trial' of the suit but that does not mean that it cannot deal with the subsequent suit any more or for any other purpose. In view of the object and nature of the provision and the fairly settled legal position with respect to passing of interlocutory orders it has to be stated that the word 'trial' in Section 10 is not used in its widest sense. 9 . The provision contained in Section 10 is a general provision applicable to all categories of cases. The provision contained in Order 37 apply to certain classes of suits. One provides a bar against proceeding with the trial of a suit, the other provides for granting of quick relief. Both these provisions have to be interpreted harmoniously so that the objects of both are not frustrated. This being the correct approach and as the question that has arisen for consideration in this appeal is whether the bar to proceed with the trial of subsequently instituted suit contained in Section 10 of the Code is applicable to a

¶111

O.P.(C) Nos.3649 of 2017, 3650 of 2017, 3656 of 2017 and 235 of 2018

¶112

¶113

summary suit filed under Order 37 of the Code, the words 'trial of any suit' will have to be construed in the context of the provisions of Order 37 of the Code. Rule 2 of Order 37 enables the plaintiff to institute a summary suit in certain cases. On such a suit being filed the defendant is required to be served with a copy of the plaint and summons in the prescribed form. Within 10 days of service the defendant has to enter an appearance. Within the prescribed time the defendant has to apply for leave to defend the suit and leave to defend may be granted to him unconditionally or upon such terms as may appear to the court or judge to be just. If the defendant has not applied for leave to defend, or if such an application has been made and refused, the plaintiff becomes entitled to judgment forthwith. If the conditions on which leave was granted are not complied with by the defendant then also the plaintiff becomes entitled to judgment forthwith. Rule (7) of Order 37 provides that save as provided by that order the procedure in summary suits shall be the same as the procedure in suits instituted in the ordinary manner. Thus in classes of suits where adopting summary procedure for deciding them is permissible the defendant has to file an appearance within 10 days of the service of summons and apply for leave to defend the suit. If the defendant does not enter his appearance as required or fails to obtain leave the allegations in the plaint are deemed to be admitted and straightway a decree can

¶114

O.P.(C) Nos.3649 of 2017, 3650 of 2017, 3656 of 2017 and 235 of 2018

¶115

¶116

be passed in favour of the plaintiff. The stage of determination of the matter in issue will arise in a summary suit only after the defendant obtains leave. The trial would really begin only after leave is granted to the defendant. This clearly appears to be the scheme of summary procedure as provided by Order 37 of the Code.

¶117

10 . Considering the objects of both the provisions, i.e., Section 10 and Order 37 wider interpretation of the word "trial" is not called for. We are of the opinion that the word 'trial' in Section 10 in the context of a summary suit, cannot be interpreted to mean the entire proceedings starting with institution of the suit by lodging a plaint. In a summary suit the 'trial' really begins after the court or the judge grants leave to the defendant to contest the suit. Therefore, the court or the judge dealing with the summary suit can proceed up to the stage of hearing the summons for judgment and passing the judgment in favour of the plaintiff if (a) the defendant has not applied for leave to defend or if such application has been made and refused or if (b) the defendant who is permitted to defend fails to comply with the conditions on which leave to defend is granted.”

¶118

In conclusion, it can be held that Section 10 of the Code has

¶119

no application in this case as O.S.No.629 of 2017 cannot be said to be in relation to same subject matter in O.S.No.184 of 1977. In this context, the

¶120

O.P.(C) Nos.3649 of 2017, 3650 of 2017, 3656 of 2017 and 235 of 2018 18

¶121

expression “subject matter” has to be understood in the light of a Full Bench decision of this Court in Victoria v. Yesuraj Kumar and others (2017 (4) KLT 936) . In paragraph 33 of the decision the following observations are made:

¶122

“To sum up this point, we are of the clear view that subject matter of a suit is not the property in respect of which the suit is laid. It may be the cause of action in some cases. It may be the right which one party claims against the other, demanding a pronouncement by the court. In general, the expression has a reference to a right in the property, which the plaintiff seeks to enforce and, therefore, it includes the cause of action and the relief claimed.”

¶123

Further, the matter in issue in O.S.No.184 of 1977 is not the matter in issue in O.S.No.629 of 2017. For that reason also, the principles in Section 10 of the Code cannot be applied.

¶124

It was argued before this Court by the learned counsel for the respondents that in fact the court below heard the parties on the question whether it has jurisdiction to entertain the suit in the light of the decision of the Supreme Court in Special Leave Petition No.16579 of 2013 and it was about to pronounce orders, at that time these original petitions were filed by the petitioners and obtained an order of stay from this Court.

¶125

Having regard to the facts and circumstances, I find that

¶126

O.P.(C) Nos.3649 of 2017, 3650 of 2017, 3656 of 2017 and 235 of 2018 19

¶127

Ext.P6 order challenged in O.P.(C) No.235 of 2018 is perfectly legal and the challenge is not maintainable. In the light of the findings above, the Munsiff's Court, Muvattupuzha is directed to dispose of all the applications in O.S.No.629 of 2017 after affording a full opportunity to the parties to be heard and the orders shall be passed within a period of two weeks from the date of production of a copy of this judgment.

¶128

O.P.(C) No.235 of 2018 is dismissed. O.P.(C) Nos.3649 of

¶129

2017, 3650 of 2017 and 3656 of 2017 are disposed of.

¶130

A. HARIPRASAD, JUDGE.

¶131

cks

Reji v. K.M.Poulose

Case brief

What is this about?

What did the court decide?

Reji v. K.M.Poulose

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Babu Vs Rainam

Leelamoni Vs Mohanan

Thanka D/O.Meppurath Ittaman Vs Madhavi

Muhammed Sahib Alias Esumal Vs Suhara Beevi

Rugmini Vs K.J. Gopakumar

Sreenivasan Vs Monisha