Dismissed

Prabha Sreevalsan v. Ullattu Kandy Jayarajan

Kerala HC18 Jan 2022FAO (RO)/23/2017

Case brief

AI extract

What is this about?

The High Court dismissed appeals against a remand order passed by the first appellate court. The appellate court remanded the matter to rectify a drafting defect in the plaintiffs' prayer for declaration regarding title to specific property. The High Court held the remand was proper under Order XLI Rules 23 and 23A CPC to advance justice.

What did the court decide?

Appeals dismissed; parties directed to appear before trial court on 08/02/2022.

Prabha Sreevalsan Vs Ullattu Kandy Jayarajan — Property and Title | Kerala HC (2022)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE P.SOMARAJAN

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TUESDAY, THE 18^th DAY OF JANUARY 2022 / 28TH POUSHA, 1943

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FAO (RO) NO. 23 OF 2017

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AGAINST THE JUDGMENT DATED 31.08.2015 IN OS No.725/2001 OF ADDITIONAL

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MUNSIFF COURT-I, KOZHIKODE

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JUDGMENT DATED 26.11.2016 IN AS No.175/2015 OF ADDITIONAL DISTRICT

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COURT- V, KOZHIKODE

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APPELLANTS/RESPONDENTS/DEFENDANTS:

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1 PRABHA SREEVALSAN, AGED 70 YEARS, D/o NARAYANAN, MOOLAYIL KOTTIYATH, 17/17A, TEMPLE LANE, BANK ROAD, KASABA AMSOM DESOM, KOZHIKODE-673001.

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2 PRAKASH NARAYANAN, AGED 65 YEARS, S/o NARAYANAN, 5/2614, 'SAGARIKA', PLOT NO.6, SANTHI NAGAR COLONY, KALATHINKUNNU AMSOM DESOM, KOZHIKODE-673001.

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3 RAMESH NARAYANAN, AGED 60 YEARS, S/o NARAYANAN, 17/17 A, TEMPLE LANE, BANK ROAD, KASABA AMSOM DESOM, KOZHIKODE-673001.

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BY ADVS. M.RAJENDRAN NAIR C.BHASKARAN

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NABIL KHADER

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RESPONDENTS/APPELLANTS/PLAINTIFF No.1, ADDL.PLAINTIFF:

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1 ULLATTU KANDY JAYARAJAN, AGED 66 YEARS, S/o U.K.APPU, ULLATTIL HOUSE, KALATHINKUNNU AMSOM DESOM, KOZHIKODE-673001.

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2 U.K.MOHANRAJ, AGED 65 YEARS, S/o ULLATU KANDY KALLUTHI PARAMBIL APPU, ULLATTIL HOUSE, KALATHINKUNNU AMSOM DESOM, KOZHIKODE-673001.

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R1 & R2 BY ADVS. SRI.P.A.HARISH SRI.V.V.SURENDRAN

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THIS FIRST APPEAL FROM ORDER - REMAND ORDER HAVING COME UP FOR HEARING ON 18.01.2022, ALONG WITH FAO (RO).24/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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FAO (RO) Nos.23 & 24 of 2017

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE P.SOMARAJAN

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TUESDAY, THE 18^th DAY OF JANUARY 2022 / 28TH POUSHA, 1943

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FAO (RO) NO. 24 OF 2017

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AGAINST THE JUDGMENT DATED 31.08.2015 IN OS No.197/2010 OF ADDITIONAL

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MUNSIFF COURT-I, KOZHIKODE

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JUDGMENT DATED 26.11.2016 IN AS No.174/2015 OF ADDITIONAL DISTRICT

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COURT- V, KOZHIKODE

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APPELLANTS/RESPONDENTS/DEFENDANTS:

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1 PRABHA SREEVALSAN, AGED 70 YEARS, D/o NARAYANAN, MOOLAYIL KOTTIYATH, 17/17 A, TEMPLE LANE, BANK ROAD, KASABA AMSOM DESOM, KOZHIKODE-673001.

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2 PRAKASH NARAYANAN, AGED 65 YEARS, S/o NARAYANAN, 5/2614, "SAGARIKA", PLOT NO.6, SANTHI NAGAR COLONY, KALATHINKUNNU AMSOM DESOM, KOZHIKODE-673001.

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3 RAMESH NARAYANAN, AGED 60 YEARS, S/o NARAYANAN,17/17 A, TEMPLE LANE, BANK ROAD, KASABA AMSOM DESOM, KOZHIKODE-673001.

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BY ADVS. M.RAJENDRAN NAIR

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C.BHASKARAN NABIL KHADER

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RESPONDENT/APPELLANT/PLAINTIFF:

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U.K.MOHANRAJ, AGED 65 YEARS, S/o ULLATU KANDY KALLUTHI PARAMBIL APPU, ULLATTIL HOUSE, KALATHINKUNNU AMSOM DESOM, KOZHIKODE-673001.

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BY ADVS. SRI.P.A.HARISH

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SRI.V.V.SURENDRAN

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THIS FIRST APPEAL FROM ORDER - REMAND ORDER HAVING COME UP FOR HEARING ON 18.01.2022, ALONG WITH FAO (RO).23/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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FAO (RO) Nos.23 & 24 of 2017

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JUDGMENT

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Two suits were tried jointly and a common decree and judgment was rendered by the trial court, against which two appeals were preferred before the first appellate court. The first appellate court, in turn, set aside the judgment and decree of the trial court and passed an order of remand, against which, the defendants came up in appeal.

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It is submitted by the learned counsel for the

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appellants Sri.Rajendran Nair that a remand of the matter in a routine way cannot be sustained and relied on the various decisions (1) paragraphs 14, 16 and 35 of the decision of Apex Court in Syeda Rahimunnisa v. Malan Bi (Dead) by L.Rs and Another [2016 KHC 6656], (2) paragraph 3 of the decision of Apex Court in Prakasan A.A. v. Anupama and Others [2017 KHC 6934], (3) paragraphs 17 and 18 of the decision of this court John A. Augustine v. M.R. Renjan and Others [2016 (4) KHC 160], (4) paragraph 5 of the decisions of this court in Kalu Amma and Another v. Ammukutty Amma

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and Another [1964 KHC 313], (5) Chidambaram Pillai v.

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FAO (RO) Nos.23 & 24 of 2017 4

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Madhavi Amma [1988 KHC 469], (6) paragraph 19 of the

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decision of Apex Court in Malluru Mallappa (D) Thr. Lrs. v.

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Kuruvathappa and others [2020 (1) KHC 977] and (7) paragraphs 19, 20 and 22 of the decision of Apex Court in

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Balaji Singh J v. Diwakar Cole and Others [2017 KHC 6344] .

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It is also contended that in a suit for injunction simplicitor, when the title is brought under challenge, it is not permissible to remand the matter so as to amend the plaint and to fill up the lacuna and relied on the decision rendered in Narayani v. Damu [1988 KHC 612] .

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It is a suit for declaration and permanent

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prohibitory injunction. But the substantial prayer

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incorporated in the suit for declaration was not drafted in a proper way. The declaration sought is for declaring that

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the defendants have no right, title or interest over the

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'B' schedule property, instead of asking for a declaration of their alleged right over the said property. The dispute is pertaining to 'B' schedule property and the alleged

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claim of plaintiffs over the said property. The way in which the declaratory relief has been incorporated in the plaint would prima facie show the lack of proper drafting

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FAO (RO) Nos.23 & 24 of 2017 5

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of the suit. On the other hand, going by the entire

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pleading and dispute involved and also the declaratory relief sought, it is clear that what is actually intended by the plaintiffs is to resolve the dispute pertaining to the 'B' schedule property. Hence, it is not permissible to put the laches of the counsel on the shoulder of the party

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concerned. It is true that the substantial prayer of declaration requires some modification. It is not at all permissible either to ask for a negative declaration or to grant such a declaration. The declaratory relief ought to have been framed in a positive way for the purpose of

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declaring the plaintiffs claim over the property. The other suit is also standing on the same footing based on the very subject matter and issue.

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The order of remand was ordered to rectify the

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abovesaid mistake crept in the declaratory relief sought by

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the plaintiffs. The amendment ordered by the first

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appellate court has to be appreciated in the light of the dispute involved and the attending circumstances. The duty

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vested with the court is not for curtailing the valuable

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right, but for advancement of justice and it is for that

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FAO (RO) Nos.23 & 24 of 2017

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purpose, the first appellate court has ordered remand of

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the matter. As such, the matter would squarely come under

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the purview of Order XLI Rule 23A C.P.C. Hence, it cannot be said that the order of remand is against the legal position settled in the abovesaid decisions.

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This Court had the occasion to laid down the legal

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position in Gopalakrishnan and Another v. V.Ponnappan and Others [2021 (5) KHC 548]. It must be understood that whenever a remand is required or unavoidable in view of Rule 23A or 23 of Order XLI C.P.C., it is not advisable to deny the same.

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Hence, the appeals fail, dismissed. No cost. The

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parties shall appear before the trial court on 08/02/2022 so as to enable the trial court for a speedy disposal of the suit.

Sd/-

P.SOMARAJAN

JUDGE

DMR/-

Prabha Sreevalsan v. Ullattu Kandy Jayarajan

Case brief

What is this about?

What did the court decide?

Prabha Sreevalsan v. Ullattu Kandy Jayarajan

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

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Parties & counsel

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