High Court · 2012

P. BHAVADASAN, J.- - - - - - - - - - - - - - - - - - - - - - - - - R.P. No. 1023 of 2012 inI.A. No. 1141 of 2012 inR.F.A. No. 28 of 2010. - - - - - - - - - - - - - - - - - - - - - - - - -Dated this the 6th day of December, 2012.ORDERThe review petition is directed against the orderin I.A.1141 of 2012 in R.F.A. No.28 of 2010 which wasdisposed of by order dated 28.9.2012. 2. Before going to the review petition, in order tounderstand the scope and propriety of the review petition, itwill be necessary to refer to a few facts.3. A suit as O.S.9 of 2009 was instituted beforethe District Court, Ernakulam purportedly under Section 92of the Code of Civil Procedure regarding the affairs of apublic trust, namely, Chinmaya Mission Educational andCultural Trust, hereinafter referred to as CMECT. Sevenpersons constituted a trust by deed dated 17.3.1994. In thesuit, allegations of corruption, nepotism, mismanagement,maladministration, financial irregularities and several other R.P.1023/2012. 2allegations were raised against some of the defendants. Afew of the defendants entered appearance and during thependency of the suit some of the parties entered into acompromise which was filed before court. Since the suitwas in a representative capacity, the compromise waspublished in newspapers as required under Order XXIIIRule 3B(2) read with Order 1 Rule 8 Sub-Rule (4) of C.P.C.In pursuance to the publication, defendants 6 to 14 gotthemselves impleaded. They filed their objection againstthe acceptance of the compromise. While so, some of thedefendants filed I.A.4767 of 2009 in O.S.9 of 2009 seekingto withdraw from the compromise filed before court. Someof the defendants subsequently got impleaded and they alsofiled objections to the compromise. Rejecting the variousobjections, the compromise filed before court was acceptedand a decree was passed. One of the clauses in the decreereads as follows:“The Governing Board constituted on17.5.2008 for the Chinmaya Vidyalaya, R.P.1023/2012. 3Ernakulam shall stand dissolved and in its place aManaging Committee as required to be formedunder the C.B.S.E. Affiliation bye-laws shall takeover the management of the said Vidyalaya on orbefore 28.2.2009.”Though a few defendants have filed a review petition beforethe court below, those were dismissed. Some of thedefendants challenged the said judgment and decree inR.F.A.28 of 2010 before this court. The first respondent inthe appeal had a contention that the appeal was notmaintainable and he sought to support the compromisedecree passed by the trial court. 4. On various occasions when the matter came upbefore this court, knowing the consequences of the decreeand the impact it could have on a prestigious and well runinstitution, various suggestions were made to have thematter amicably settled. From the proceedings, it would beabundantly clear that the court was more concerned withthe welfare and the proper running of the institution and its R.P.1023/2012. 4fate. By the internal bickerings between the parties, theinstitution alone stood to loose and infact all the issues thatarose in the suit could have been settled out of courtamicably. 5. Keeping in view the welfare of the institutionand the necessity to devise a proper method to ensure thatthe institution is run properly, several suggestions weremade by this court. The main suggestions were with regardto Clauses 2 and 3 of the decree of the trial court.Ultimately, this court taking note of the various aspects ofthe case thought it fit to appoint a committee to conduct anenquiry as contemplated in the trial court decree anddirected the parties to supply the names of the personswhom they like to be considered as members of theCommittee. Both sides submitted their respective panelsand ultimately after deliberation, the Committee headed byJustice K.T. Thomas as the Chairman was constituted. After R.P.1023/2012. 5considering the various aspects, this court passed amodified decree, which reads as follows:“Accepting the suggestions and considering thevarious aspects, a modified decree is passed asfollows:(1) The Governing Board constituted on17.5.2008 for the Chinmaya Vidyalaya,Ernakulam shall stand dissolved and in its placea Managing Committee as required to be formedunder the C.B.S.E. affiliation bye-laws shall takeover the management of the said Vidyalaya on orbefore 28.2.2009.(2) The 4th joint petitioner/2nd defendant shallappoint a Managing Committee for the ChinmayaVidyalaya, Ernakulam as per C.B.S.E. affiliationbye-law as per the suggestions made by theCommittee constituted above and from the panelobtained by the 2nd defendant.(3) The financial irregularities, mal-practices andsuch other irregularities complained of in theoriginal petition may be enquired into by theCommittee consisting of Mr.Justice K.T.Thomasand Mr. Justice T.V.Ramakrishnan and the thirdmember to be engaged by the Chairman of the R.P.1023/2012. 6Committee. The Committee may enquire into allthe irregularities commencing from the period1.4.2002 or from such period as the Committeedeems fit and submit a report to the seconddefendant in the suit as early as possible.(4) The recommendations of the Committee shallbe binding and enforceable on all the parties tothe suit. The expenses in connection with theenquiry shall be met by Chinmaya Vidyalaya,Ernakulam. The remuneration for the variousmembers of the Committee are tentativelydetermined as follows:(i) Chairman (Mr. Justice K.T.Thomas)- Rs.1,25,000/-(ii) Mr. Justice T.V.Ramakrishnan - Rs.1,00,000/-(iii) 3rd Member (Chartered Accountant)-Rs.75,000/-The remuneration shall be paid directly to themembers. The second defendant in the suit willbe at liberty to take such steps as are necessaryin the light of the report submitted by theCommittee.(5) Till the completion of the enquiry andsubmission of the report by the Committeeappointed by this court, the Committee maydetermine as to the actual functions that could becarried on by the Principal of the School of R.P.1023/2012. 7Chinmaya Vidyalaya, Ernakulam for the day today administration of the School.(6) The personal allegations made against the 5thjoint petitioner/3rd defendant and 3rd jointpetitioner/1st defendant are hereby withdrawn bythe 1st and the 2nd joint petitioners/1st and 2ndplaintiffs.”6. It appears that the Committee, after severalsittings, requested both parties to submit a panel of namesfrom whom persons have to be included in the list to besubmitted by the second respondent who is to constitute theManaging Committee as per the decree of this court. Itmay be remembered at this juncture that the judgment ofthis court was dated 7.9.2011. Obviously, the Committeewhich is contemplated under Clause 2 of the decree of thiscurt could have been constituted only thereafter and such aCommittee could have taken charge only later. 7. Noticing that there is a conflict betweenClause 1 and Clause 2 of the decree of this court, R.P.1023/2012. 8respondents 1 and 2, who are the petitioners herein filedI.A.1141 of 2012 under Section 151 of C.P.C. seekingclarification regarding the operation of Clauses 1 and 2 ofthe decree of this court.8. It is necessary to refer to the affidavit filed insupport of the petition under Section 151 C.P.C. seekingclarification. The main contention was that even thoughthis court modified the decree, as per clause 2, theManaging Committee to be constituted was to take over themanagement of the Vidyalaya on or before 28.2.2009. Thatdate, according to the petitioners in I.A.1141 of 2012, didnot get altered by the modified decree of this court and ifthat be so, the Managing Committee constituted by the 4thjoint petitioner as per the decree of this court is to takecharge with effect from 28.2.2009. The further contentionwas that the right of the plaintiffs in the suit, who are thepetitioners in I.A.1141 of 2012 to have the managementreplaced as on 28.2.2009 was preserved by this court and R.P.1023/2012. 9the petitioners are entitled to have that benefit. Theprinciple of restitution was also invoked. 9. It is significant to notice that the petition wasfiled under Section 151 C.P.C. and neither Section 114 norOrder 47 is seen mentioned in the petition nor is thereanything to show that the petition was filed under thoseprovisions. It is also significant to notice that no objectionwas taken in I.A.1141 of 2012 to the modified decree andthe only assertion in I.A.1141 of 2012 was that Clause 1 ofthe decree of this court should prevail over Clause 2thereby contending that the Managing Committee to beconstituted as per the decree of this court should takecharge with effect from 28.2.2009. What is significant isthat there was no contention taken in the affidavit or in thepetition that this court had no jurisdiction to modify theconsent decree passed by the trial court or that the decreeso passed by this court is invalid in law. On the other hand, R.P.1023/2012. 10the petitioner in I.A.1141 of 2012 wanted the decree passedby this court to be implemented in a particular manner.10. The only grievance then was that the attempton the part of the new Managing Committee to take effectfrom a future date other than 28.2.2009 cannot becountenanced. In view of Clause 1 of the decree passed bythis court and for the said purpose the petitioners inI.A.1141 of 2012 invoked the principle of restitution.11. The respondents in the I.A. pointed out thatthe mentioning of date 28.2.2009 can be treated only as aninadvertent mistake committed by this court since thejudgment and decree of this court is dated 7.9.2011. As perthe decree of this court, a Committee was constituted andthe said Committee was to submit a panel of names to thesecond respondent as referred to Clause 2 of the decree ofthis court for constitution of the Managing Committee of theVidyalaya. The deliberation of the Committee could beginonly thereafter and obviously, the Managing Committee to R.P.1023/2012. 11be constituted as per Clause 2 of the decree can be onlyafter the date of judgment of this court. Therefore, thecontention on behalf of the petitioners in I.A.1141 of 2012that the Committee to be constituted long after the datementioned in Clause 1 of the decree of this court shouldtake charge from the date mentioned in Clause 1 ispractically impossible and that is sufficient to show that thedate mentioned in Clause 1 of this court is an inadvertentmistake.12. This court considered the rival contentionsand disposed of the I.A. As follows:“5. After having gone through the petition andthe counter affidavit and on hearing therespective counsel, the contention of therespondents that the petition lacks bonafides andis filed with an oblique motive seems to be fullyjustified. This court disposed of R.F.A. Nos.28,602 and 630 of 2010 vide judgment dated7.9.2011. This court by the said judgmentconstituted a Committee consisting of threepersons and conferred considerable powers on R.P.1023/2012. 12that Committee. This court made it clear in thejudgment that the Managing Committee of theChinmaya Vidyalaya as per the CBSE affiliationbye-laws shall be appointed by the fourth jointpetitioner/ second defendant as per thesuggestions made by the Committee constitutedand from the panel obtained by the seconddefendant. It is therefore clear that theManaging Committee for Chinmaya Vidyalaya asper the CBSE affiliation could have beenconstituted only from the panel submitted by theCommittee appointed by this court. Thatconstitution of the Committee obviously couldhave been only after 7.9.2011 and therefore thedate shown as 28.2.2009 as the date of takingover charge obviously is an inadvertent mistakecommitted by this court.”13. The present review petition, namely, R.P.1023 of 2012, is filed under the assumption that I.A.1141 of2012 was one for review of the judgment and decree inR.F.A. 28 of 2010. Learned Senior Counsel appearing for R.P.1023/2012. 13the review petitioners contended that since the judgmentand decree in R.F.A. 28 of 2010 has merged in the order inI.A.1141 of 2012, review of the order in I.A.1141 of 2012 issought for. The main complaint raised by the learnedSenior Counsel is that this court had deliberately omitted toadvert to certain vital aspects which were raised forconsideration in I.A.1141 2012 regarding themaintainability of the appeal and the competence of thiscourt to interfere with the compromise decree. 14. Learned Senior counsel appearing for thereview petitioners contended that being a compromisedecree under Order 23 Rule 3, this court had nojurisdiction or power to modify or vary the decree alteringterms of the decree of the lower court and the alterationmade by this court would amount to varying the terms ofthe agreement arrived at by the parties, which is again,impermissible in law. In support of his contention, learnedcounsel relied on the decisions reported in Pushpa Devi R.P.1023/2012. 14Bhagat v. Rajinder Singh (AIR 2006 SC 2628), ShamlalBatra v. Bhagwandas Narandas Patel ((1973) 1 SCC175), Katikara Chintamani Dora v. GuntreddiAnnamanaidu ((1974) 1 SCC 567), Suvaran RajaramBandekar v. Narayan R. Bandekar ((1996) 10 SCC 255),K. Venkata Seshiah v. Kanduru Ramasubramma((1991) 3 SCC 338) and Thamineni Kathavanga Naidu v.Mutluru Ramappa (2007(4) ALT 164). This vital aspect,according to learned Senior Counsel, was not dealt with bythis court while considering I.A.1141 of 2012 and thatconstitute an error apparent on the face of the record. Thefurther contention is that the remarks made by this court asagainst the first petitioner, who is a lawyer by professionand who, according to the learned Senior Counselappearing for the review petitioners, had renderedcommendable service in the running of the School was quiteunwarranted and unjustified, so they may be expunged. Itwas also contended that the principle of restitution R.P.1023/2012. 15highlighted in I.A.1141 of 2012 was not considered by thiscourt and the decisions mentioned in the said I.A. in supportof the plea of restitution were also not considered. 15. Learned counsel appearing for therespondents pointed out that it is quite unfortunate that theeffort taken by this court to streamline the management andadministration of a prestigious School is attempted to bethwarted again and again by the petitioners by filingfrivolous and vexatious petitions. It was pointed out by thelearned counsel appearing for the respondents that I.A.1141of 2012 was one filed under Section 151 of C.P.C. and notone seeking review of the judgment in R.F.A. 28 of 2010under Section 114 and Order 44 Rule 1 C.P.C.. The maincontention now taken is that this court had no jurisdictionor power to vary or alter the decree passed by the trialcourt. No where in the affidavit in support of I.A.1141 of2012 there is a contention to the effect that this court wasincompetent to alter the judgment and decree of R.P.1023/2012. 16the trial court which was passed based on a compromiseand thereby varying the terms agreed to between theparties. The scope of I.A.1141 of 2012 as could bediscerned from the affidavit in support of the petition,according to the learned counsel for the respondents, is thatClause 1 wherein the date 28.2.2009 is mentioned shouldprevail over Clause 2 of the decree of this court. There wasno challenge either in the affidavit or in the petitionI.A.1141 of 2012 that the appeal itself was not maintainableand that this court had no jurisdiction to interfere with thejudgment and decree passed by the lower court on thebasis of the compromise. Since there was no suchcontention taken in I.A.1141 of 2012, this court had nooccasion to consider the same. Having not urged that pointin I.A.1141 of 2012 and having contended for the positionthat Clause 1 of the decree passed by this court shouldprevail over Clause 2 of the decree, the present attemptunder the guise of labelling I.A.1141 of 2012 as a review R.P.1023/2012. 17petition, the petitioners are infact seeking review of thejudgment in R.F.A. 28 of 2010 which was not the subjectmatter in I.A.1141 of 2012. Such an act is impermissible inlaw. The ingenuous method evolved by the petitioners inseeking a review of the judgment and decree in R.F.A. 28 of2010 is only to be deprecated because a review of thejudgment in R.F.A. is hopelessly barred by limitation. It isto circumvent the said infirmity that this dubious methodhas been adopted by the petitioners to label I.A.1141 of2012 as a review petition thereby seeking to have thejudgment and decree in R.F.A.28 of 2010 indirectlyreviewed. Learned counsel went on to point out that suchdilatory and mischievous acts call for strong deprecationand it only shows that the attempt of the petitioners is toupset the smooth functioning of the School, the affairs ofwhich had been put on rails as a result of the decree inR.F.A. 28 of 2012 and consequent to the deliberations of theCommittee constituted by this court and the Managing R.P.1023/2012. 18Committee appointed pursuant thereto. It was also pointedout that the petitioners took part in the deliberation of theCommittee constituted by this court without demur andhave submitted panel of names whom they wish to beconsidered as members of the Managing Committee. It isquite uncharitable, according to the learned counsel forthe respondents, to blame this court for not havingconsidered a question now raised which finds no place inI.A.1141 of 2012 and which this court was not called uponto deliberate and decide. Learned counsel thereforecontended that the review petition is only to be dismissed. 16. Learned counsel appearing for therespondents also pointed out that as far as the remarksmade by this court against the first petitioner areconcerned, they are justified, as could have seen by thefiling of the present petition, in which unfounded allegationsare made against this court and the attempt of thepetitioner is to put the clock back and upset the entire R.P.1023/2012. 19efforts taken by this court and parties to ensure that theSchool is run effectively and properly. The claim that thiscourt had deliberately omitted to consider a point whichwas agitated before this court being false as there was nosuch contention either raised in I.A.1141 of 2012 norcontended before this court at the time of argument of saidI.A. before this court, it is only in the fitness of things thatthe petitioners are to be mulcted with exemplary costs forgross misuse and abuse of the process of court. It was alsoemphasized that such unhealthy practices should be dealtwith firmly.17. As rightly pointed out by the learned counselfor the respondents, it is quite unfortunate that this courthas been found fault with and in fact accused of notconsidering the maintainability of the appeal and thejurisdiction of this court to interfere with the compromisedecree earlier which were not even urged before this courtin I.A.1141 of 2012 and regarding which no arguments were R.P.1023/2012. 20addressed before this court at the time of hearing ofI.A.1141 of 2012. The accusation, to say the least, isdisturbing and uncharitable. 18. In this context, it becomes necessary to referto I.A.1141 of 2012 in some detail. As rightly pointed out bythe learned counsel for the respondents, the petition is seenfiled under Section 151 C.P.C. and the prayer in the petitionreads as follows:“For the reasons stated in the accompanyingaffidavit, it is humbly prayed that this Hon'bleCourt may be pleased to give a clarificationsought by the Hon'ble Committee appointed bythis Hon'ble Court in its sitting held on 2.5.2012with regard to Clause 1 and 2 of para 15 of thejudgment of this Hon'ble court dated 7.9.2011 byholding to the effect that Clause 1 of para 15shall prevail over Clause 2 of para 15.”Nowhere in the affidavit in support of the petition, there isany mention regarding the contention now taken that thiscourt ought not to have interfered with the compromise R.P.1023/2012. 21decree and the appeal itself was not maintainable. In fact, areading of the affidavit would reveal that the petitioners hadaccepted the decree and they only want a clarification thatClause 1 of the decree of this court prevails over Clause 2,thereby contending for the position that the ManagingCommittee to be constituted much later to the decree ofthis court should be directed to take charge retrospectivelywith effect from 28.2.2009. The petitioners in I.A.1141 of2012 claimed that they have a right to have the ManagingCommittee which has to take charge from 28.2.2009 basedon the principle of restitution.19. Apart from the fact that there was nochallenge to the validity of the decree passed by this courtin I.A.1141 of 2012, it is also significant to notice that thepetitioners took part in the deliberation before theCommittee constituted by this court without any demur andthey also submitted their panel of names to be consideredfor being appointed as members of the Managing R.P.1023/2012. 22Committee. There is no whisper in the affidavit in supportof I.A.1141 of 2012 that the decree passed by this court iswithout jurisdiction and is a nullity.20. The inability of this court to accept thecontention raised in I.A.1141 of 2012 to the effect thatclause 1 should be declared to prevail over clause 2 of thedecree has been dealt with in detail while disposing ofI.A.1141 of 2012. 21. One can have no quarrel with the propositionlaid down in the various decisions relied on by the learnedcounsel for the petitioners which have referred to the scopeof interference with a compromise decree. But, as alreadynoticed, apart from the fact that I.A.1141 of 2012 was not apetition seeking review of the judgment and decree inR.F.A.28 of 2010, it was in fact a petition seekingclarification, accepting the terms of the decree. When thiscourt found that the date 28.2.2009 mentioned in clause 1of the decree of this court was an inadvertent mistake and R.P.1023/2012. 23that it is impossible to have a Managing Committee to takeeffect with retrospective effect, the relief sought for by thepetitioners was declined. Since the principle of restitutionwas taken aid of for the purpose of contending that Clause1 should prevail over Clause 2 and since it was found that itcannot be so, this court did not further probe into theprinciple of restitution agitated by the petitioners inI.A.1141 of 2012. More so because, that question thereafterdid not arise for consideration at all.22. As I.A.1141 of 2012 was a petition filedunder Section 151 C.P.C. and the prayer was only seekingclarification to the effect that Clause 1 in the decree passedby this court prevails over Clause 2, by no stretch ofimagination I.A.1141 of 2012 can be treated as a petition forreview of the judgment and decree in R.F.A.28 of 2010.Therefore, the contention now taken by the petitioners andvery vehemently argued by the learned Senior Counsel on R.P.1023/2012. 24their behalf that the decree of this court in R.F.A.28 of 2010has merged with the order in I.A.1141 of 2012 cannot becountenanced. At the risk of repetition, it may bementioned that there was no review sought for of thejudgment and decree in R.F.A.28 of 2010 in I.A.1141 of2012, but on the other hand it was regarding the mode ofimplementation of the decree clarification was sought for inthe said petition. If that be so, the judgment and decree inR.F.A.28 of 2010 cannot be deemed to have merged withthe order in I.A.1141 of 20112 and the judgment and decreeremains as such. In the present petition, i.e., R.P.1023 of2012, there is no prayer to review the judgment and decreein R.F.A.28 of 2010. 23. Apart from the above facts, if one is toassume as contended by the learned Senior Counsel for thepetitioners that I.A.1141 of 2012 is a review petition, then areview of an order in review is not maintainable. In the R.P.1023/2012. 25decision reported in Niyamavedi v. Union of India (AIR2004 Kerala 81), it was held as follows:“12. .......... Application for condonation ofdelay as well as the prayer to entertain thesecond Review Petition was opposed by thecounsel for the applicant contending that underOrder XLVII, Rule 1, no application for review ofan order passed on a review petition shall beentertained. We also endorse the view that nosecond review petition would lie......” In the light of the above facts and circumstances, one neednot deal with the decisions relied on by the learned SeniorCounsel for the petitioners that if the court fails to considerthe grounds urged in support of the appeal or proceedingsbefore a court, that constitutes an error apparent on theface of the record entitling the party concerned to seekreview.24. Coming to the question of expunging theremarks made by this court against the first petitioner, as R.P.1023/2012. 26rightly pointed out by the learned counsel for therespondents, the filing of the present review petition onfalse allegations only justifies the remarks made by thiscourt. Learned counsel for the respondents are fullyjustified in their submission that the present review petitionamounts to gross misuse and abuse of the process of thiscourt. 25. It is also significant to notice that the presentpetition has been filed long after the new ManagingCommittee has taken charge and the administration andmanagement of the School is being properly carried on.The Committee appointed by this court is also looking intothe various allegations of misappropriation and financialirregularities etc. It is then that the petitioners have comeforward with such a mischievous petition with the soleintention of upsetting what has been done in the interests ofthe institution. Greed for power has no bounds. R.P.1023/2012. 2726. True, learned Senior Counsel appearing forthe petitioners pointed out that the efforts put in by the firstpetitioner have been greatly appreciated in the past andtherefore the remarks were not warranted. Being a lawyerof high standing, it is contended that this court should haverefrained from making the remarks. The remarks weremade after taking note of the conduct of the first petitionerand also the fact that he was not amenable to any viablemethod by which the internal bickerings could be resolvedand a method could be adopted for the smooth running ofthe institution. Being a lawyer, he should have helped thecourt to arrive at a just and proper decision, but instead atevery stage he was putting up staunch blocks and the onlyattempt was to see that the chaos continued so that hecould take advantage of it. As has already been noticed,being a person associated with school and being at itshelm of affairs for a long period, one would have expected amore sober and reasonable approach from the first R.P.1023/2012. 28petitioner. Being a lawyer of long standing, he should haverealised his obligation to the court and his duty to see thatthe disputes are amicably resolved. Instead, he embarks ona destructive path. The filing of the present petition onuntenable and false grounds justifies the observation madeby this court against the first petitioner. His attitudeindicates that he is least concerned with the affairs of theSchool, but more concerned with retaining power. This ismore evident from the filing of the present petition also. Infact this is a fit case where exemplary costs should beordered to be paid by the petitioners. However, judicialpropriety and discipline restrains this court from takingsuch a harsh step. This Review Petition is misconceived and withoutmerits and it is accordingly dismissed without costs. P. BHAVADASAN, JUDGEsb.