Litigant Cannot Take Contradictory Stands In Same Case: Kerala HC Rejects Church's Claim On Property
|The Kerala High Court refused to accept a church's claim over a property based on a document from 1952.
The High Court observed that the plea was inconsistent as the church (review petitioner)earlier accepted the order assigning it the possession of the property without any challenge as to title.
The bench of Justice P.V. Kunhikrishnan, “After about 70 years, when this Court passed the impugned judgment in this review petition, the review petitioner is taking a stand that the review petitioner has got title to the property. This is nothing but an inconsistent plea by the review petitioner…Such a belated contention cannot be accepted by this Court.”
Advocate M. Sasindran appeared for the Appellant.
Brief Facts-
The Writ Petition was filed by the respondents in the year 2015 and challenged an earlier order by which the property was assigned to the review petitioner. The review petitioner has not challenged that order and had the property. Now, when the Court set aside said order the review petitioner went to the High Court with a stand that the order passed by the Government assigning the property to the review petitioner was illegal because the review petitioner has got title to the property based on Annexures.
The Court stated that a review petition filed in a proceeding under Article 226 of the Constitution of India is not guided by the provisions of Order 47 Rule 1 of CPC.
The Court refused to agree with the contention of the Review Petitioner that the annexures in the review petition are material evidence that could not be produced by him at the time when the judgment was delivered, even after the exercise of due diligence and observed that the stand taken in the memorandum of the review petition is contradictory to the stand taken by the review petitioner in the counter filed in the writ petition.
The Court relied on the decision of the Apex Court in Suzuki Parasrampuria Suitings Private Limited v. Official Liquidator of Mahendra Petrochemicals Limited (in Liquidation) [(2018) 10 SCC 707], and quoted, “A litigant can take different stands at different times but cannot take contradictory stands in the same case. A party cannot be permitted to approbate and reprobate on the same facts and take inconsistent shifting stands.”
The Court noted that the counter filed by the review petitioner in the writ petition would show that they relied on a document from 1952 by which the disputed land was alienated in favour of the church fixing a remuneration and that it was not able to pay the amount because of financial stringencies.
“This court cannot digest the case of the review petitioner that, they were not aware of Annexures AI and AII, till the disposal of the writ petition,” the Court added.
Finally, the Court dismissed the Review Petition.
Cause Title: Kallodi St. George Forane Church v. K. Mohandas
Appearance:
Appellant: Adv. M. Sasindran and Adv. Satheesan Alakkandan
Respondent: Sr. Government Pleader Sajith Kumar and Ashwin Sethumadhavan