If Respondent Does Not Avail Benefit Of Order 41 Rule 22 CPC In Appeal, Courts Not Obliged To Examine Correctness Of Finding In Review: Kerala HC

The Kerala High Court recently considered the ambit of Rule 22 of Order 41 of the Code of Civil Procedure and observed that where the respondent in an appeal does not choose to avail the benefit conferred by the said provision then it would not be obligatory for the Court to examine the correctness of the finding rendered in the impugned judgment in a review petition. 

The Division Bench comprising of Justice P.B. Sureshkumar and Justice C.S. Sudha went on to observe that, 

".... a contention of this nature which was available to a respondent at the time of hearing of the appeal ought to have been raised by him at that very instance itself. As such, according to us, it cannot be said that non-consideration of such a contention which was not raised by the party, is a ground to seek review of the judgment".

As per the factual matrix, the Review Petitioner was a member of the second respondent herein, a Co-operative Society registered under the Kerala Co-operative Societies Act, 1969 (hereinafter 'the Act'), and was also the President of the said Society for some time. The Review Petitioner herein and others were surcharged by the first respondent herein, who is the Joint Registrar of Co-operative societies, vide an order, under Section 68(2) of the Act on the ground that they had caused loss to the Society to the tune of Rs.3,15,269/- by taking out a building on lease unnecessarily, and without the permission of the competent authority under the Act. It was on the basis of an inquiry report by the Vigilance Officer appointed under Section 68A, and ordered by the Joint Registrar under Section 68(1) that said impugned order had been passed. 

Before the Single Judge, it had been contended by the petitioner (the Revision Petitioner herein) that there could not be an inquiry under Section 68(1) on the basis of an inquiry report of the Vigilance Officer appointed under Section 68A. Alternatively, it was also contended that the report of the Vigilance Officer under Section 68A had been drawn up by an Officer in the rank of Deputy Superintendent of Police, whereas the provisions of Section 68A of the Act clearly mandated that the enquiry officer could not be below the rank of the Deputy Inspector General of Police. The Single Judge accepted the contention of the petitioner on the first ground. On appeal however, the same was set aside. It was at this juncture that the instant revision petition was instituted. 

The counsels for the Revision Petitioner, Senior Advocate George Poonthottam and Advocates Nisha George and Reginald Valsalan argued that the Appellate Court ought to have considered the alternative contention raised by the petitioner in the writ petition viz, that the report under Section 68A was drawn up by an incompetent officer also, before upsetting the judgment of the learned Single Judge, and hence the judgment in writ appeal was liable to be reviewed on ground of the error apparent on the face of record.

The Court in this case relied upon Rule 22 of Order 41 of the Code of Civil Procedure, the principles of which it stated, was applicable to an appeal under Section 5 of the High Court Act, 1958, as well.

The provision stipulates that any respondent in an appeal, though he may not have appealed from any part of the decree, may not only support the decree but may also state that the finding against him in the judgment impugned in respect of any issue ought to have been in his favour.

The Appellate Court noted that the counsels for the petitioner had not pointed out  at the time of hearing of the appeal that in the event of the court accepting the arguments of the respondents as to the sustainability of the ground on which the writ petition was allowed, the petitioner was still entitled to sustain the judgment on the alternative plea raised in the writ petition. It is at this juncture that the Court pointed out that when the counsels had not raised such a contention at the time of hearing itself, no review petition could lie, and accordingly, the review petition was dismissed. 

The respondents in the instant case were represented by Advocates Venugopal M.R., Dhanya P. Ashokan, and Senior Government Pleader T.K. Vipindas. 

Case Title: Charley Panthallookaran v. Joint Registrar (General) of Cooperative Societies & Ors 

Citation: 2022 LiveLaw (Ker) 484

Click Here To Read/Download The Order