Kerala High Court
Indu.S.Shenoi vs Santhakumari.T.V on 3 April, 2024
Author: Anil K. Narendran
Bench: Anil K.Narendran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR. JUSTICE HARISANKAR V. MENON
Wednesday, the 3rd day of April 2024 / 14th Chaithra, 1946
RFA NO. 69 OF 2024(FILING NO.)
FDIA 209/2016 OF ASSISTANT SESSIONS COURT/SUB COURT / COMMERCIAL COURT,
CHERTHALA
APPELLANT(S)/PETITIONER/1ST PLAINTIFF:
INDU.S.SHENOI,AGED 43 YEARS,W/O SAJITH SHARMA,VELIMPARAMBIL HOUSE,
CMC-30, CHERTHALA PRESENTLY AT 703, OM SAI KRUPA, CHS, VASANT KUNJ
LANE, PAWAR NAGAR, THANE WEST-, PIN - 400610.
BY ADVS.T.JAYAKRISHNAN,R.KRISHNAKUMAR (CHERTHALA),
RESPONDENT(S)/RESPONDENT/1ST DEFENDANT:
SANTHAKUMARI.T.V,AGED 71 YEARS,W/O LATE SARVOTHAMA SHENOI, PLOT NO:
7, RATHNA NAGAR, VIRUGAMBAKKOM, CHENNAI, PIN - 600092.
This Unnumbered Regular first appeal(filing number 69/2024) having
come up for orders on 03.04.2024, the court on the same day passed the
following:
(p.t.o)
ANIL K. NARENDRAN & HARISANKAR V. MENON, JJ.
------------------------------------------------
Unnumbered RFA of 2024
(Filing No.69 of 2024)
---------------------------------------------------
Dated this the 3rd day of April, 2024
ORDER
Anil K. Narendran, J.
The appellant is the 1st plaintiff in O.S.No.13 of 2005 on the
file of the Sub Court, Cherthala, a suit for partition and the
petitioner in I.A.No.1 of 2022 in FDA No.209 of 2016 in
O.S.No.13 of 2005, which was one filed for passing
supplementary preliminary decree in accordance with partition
deed No.3068/2003. As per the preliminary decree, plaint A
schedule property was partitioned into four parts by giving 1/4 th
share each to the 1st plaintiff, 2nd plaintiff, 1st defendant and 2nd
defendant. Prayer for partition of plaint C and D schedule
properties was declined. Since the plaintiff failed to pay court fee
for cancellation of partition deed No.3068/2003, the prayer for
cancellation of that deed pertaining to plaint B schedule property
and partition of it was rejected. By the impugned order dated
18.02.2024 the Sub Court, Cherthala dismissed I.A.No.1 of 2022
in FDA No.209 of 2016 in O.S.No.13 of 2005, which is under
challenge in this Regular First Appeal filed under Section 96 read
with Order XLI Rule 1 of the Code of Civil Procedure, 1908.
Unnumbered RFA of 2024
(Filing No.69 of 2024 of 2024)
2. The defects noted by Registry are that since a petition
for passing a supplementary decree has been dismissed and no
decree was passed, RFA is not the proper remedy. Further, for
producing Annexures A1 to A5 documents, namely, certified copy
of the judgment dated 26.02.2015 in O.S.No.13 of 2005 of Sub
Court, Cherthala; certified copy of decree dated 26.02.2015 in
O.S.No.13 of 2005; copy of order dated 25.02.2015 passed on
preliminary issue in O.S.No.13 of 2005; copy of I.A.No.1 of 2022
in O.S.No.13 of 2005 for passing supplementary preliminary
decree dated 22.09.2022; and copy of objection filed by
respondent in I.A.No.1 of 2022 in O.S.No.13 of 2005, the
appellant has to invoke the provisions under Order XLI Rule 27
of the Code.
3. Heard the learned counsel for the appellant.
4. On the maintainability of an appeal against an order
passed in an application to pass a supplementary preliminary
decree, a learned Single Judge of this Court in Perumal Vadyar
and others v. Devi and others [1991 (1) KLJ 65] held that
when an application seeking supplementary preliminary decree
was dismissed that order is appealable against which no revision
under Section 115 of the Code of Civil Procedure is not
Unnumbered RFA of 2024
(Filing No.69 of 2024 of 2024)
maintainable. Paragraph 22 of that decision reads thus;
"22. The maintainability of the revision is questioned by
learned counsel for respondents. According to him to the
proper remedy is by way of appeal since the order
amounts to a decree. Though this question did not directly
arise for consideration before the Supreme Court
in Phoolchand's case (AIR 1967 SC 1470),- the Supreme
Court was considering an appeal against the decision of
the High Court of Rajasthan in an appeal against the order
of the trial court. This court had considered that question
in AIR 1968 Kerala 282 (supra) where it was held that the
order of the court directing sale of certain item after
passing of a preliminary decree which cannot be
conveniently divided among the sharers amounts to a final
adjudication of the rights of the parties. It was held that
the order amounts to a preliminary decree and hence
appealable. It was also held that a revision against such
order is not maintainable. The order was found to be a
decree within the meaning of Section 2 of the Code of Civil
Procedure. Support for this view can also he had in U.C.G.
& P. Factory v. Rama Rao (AIR 1971 Mysore 347). In that
case a question arose as to whether plaintiffs were entitled
to the assets of the partnership and the court by its order
determined that the plaintiffs have got a right in the assets
of the partnership. It was held that if such a determination
is made, the party has a right of appeal. The revision filed
against that order was found to be not maintainable. The
position here is also identical. The revision is against the
order of the court below refusing to adjudicate on the
rights of the revision petitioners to get a supplementary
Unnumbered RFA of 2024
(Filing No.69 of 2024 of 2024)
preliminary decree. Following the decisions referred above
I hold that the revision is not maintainable."
5. Another defect noted by Registry is that for accepting
additional documents, i.e., Annexures A1 to A5, the applicant
has to invoke the provisions under Order XLI Rule 27 of the Code
of Civil Procedure. Admission of additional evidence is
permissible, by invoking the provisions under Order XLI, Rule 27
of the Code of Civil Procedure, 1908. However, such power can
be exercised only in cases where the appellant has established
grounds necessary for such exercise, as contemplated under
Order XLI Rule 27 of the Code.
6. In the instant case, additional documents produced
along with memorandum of appeal as Annexures A1 to A5, i.e.,
certified copy of the judgment dated 26.02.2015 in O.S.No.13 of
2005 of Sub Court, Cherthala; certified copy of decree dated
26.02.2015 in O.S.No.13 of 2005; copy of order dated
25.02.2015 passed on preliminary issue in O.S.No.13 of 2005;
copy of I.A.No.1 of 2022 in O.S.No.13 of 2005 for passing
supplementary preliminary decree dated 22.09.2022; and copy
of objection filed by respondent in I.A.No.1 of 2022 in O.S.No.13
of 2005, are pleadings in O.S.No.13 of 2005 on the file of the
Sub Court, Cherthala, which form part of the trial court records.
Unnumbered RFA of 2024
(Filing No.69 of 2024 of 2024)
For accepting such documents on record the applicant can invoke
the provisions under Section 151 of the Code of Civil Procedure,
since it will not fall under the purview of additional documents as
contemplated by Order XLI Rule 27 of the Code of Civil
Procedure.
7. Therefore, the aforesaid defects noted by the Registry
cannot be sustained.
Registry to number the appeal and list for admission.
Sd/-
ANIL K. NARENDRAN, JUDGE
Sd/-
HARISANKAR V. MENON, JUDGE
bkn/-
03-04-2024 /True Copy/ Assistant Registrar
