Afsal P vs Thashareefa T.V.P.

1 O.P.(FC)No.729 of 2022 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR THURSDAY, THE 16[TH] DAY OF FEBRUARY 2023 / 27TH MAGHA, 1944 O.P.(FC)NO.729 OF 2022** **AGAINST THE ORDER DATED 24.05.2022 IN I.A.NO.2 OF 2022 IN O.P.NO.1018 OF 2020 OF FAMILY COURT, KANNUR PETITIONER:** **AFSAL.P AGED 44 YEARS S/O. LATE V.V ABDUL RAHIMAN HAJI, ANEESA COTTAGE, EZHILODE, CHERUTHAZHAM VILLAGE, KANNUR DISTRICT, PIN - 670309 BY ADVS. M.ANUROOP LIRA A.B. MILAN RACHEL MATHEW** **RESPONDENT:** **THASHAREEFA.T.V.P AGED 39 YEARS D/O. MUHAMMED KUNHI. M.T.P, THAYYIL HOUSE, VELLUR VILLAGE, PAYYANUR TALUK, KANNUR DISTRICT, PIN - 670307 BY ADVS. R.N.SANDEEP B.MUHAMMED SHAHEEL(K/468/2011) KEERTHI VIJAYAN(K/2292/2019)** **THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 16.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 O.P.(FC)No.729 of 2022 ## **JUDGMENT** ## **Anil K. Narendran, J.** The petitioner is the respondent in O.P.No.1018 of 2020 on the file of the Family Court, Kannur, which is one filed by the respondent herein-wife, claiming maintenance and return of gold ornaments from the petitioner-husband. In that original petition, the Family Court passed an order of attachment of the petition schedule property. In order to lift the order of attachment, I.A.No.1 of 2021 was filed by the third parties, i.e., the mother and siblings of the petitioner-husband. The petitioner-husband has also filed I.A.No.2 of 2022, seeking an order to substitute the petition schedule property with a property owned by him. The respondent-wife filed objections in both interlocutory applications, i.e., I.A.Nos.1 of 2021 and 2 of 2022. After considering the rival contentions, the Family Court by the order dated 24.05.2022 dismissed both interlocutory applications. The order of the Family Court dismissing I.A.No.2 of 2022 in O.P.No.1018 of 2020 is under challenge in this original petition, invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India. 2. On 03.01.2023, when this original petition came up for admission, this Court issued notice on admission to the 3 O.P.(FC)No.729 of 2022 ## respondent by speed post, returnable within three weeks. 3. Heard the learned counsel for the petitioner-husband and also the learned counsel for the respondent-wife. 4. The reasoning of the Family Court for dismissing I.A.No.2 of 2022 in O.P.No.1018 of 2020, as contained in paragraph 12 of Ext.P6 order dated 24.05.2022, reads thus; “12. ………… The respondent in the OP had filed I.A.No.2 of 2022 by showing another item and he would seek for substitution of that property if the attachment order is to be lifted. One of the claims of the petitioner is realisation of Rs.5,50,000/- in respect of a liability caused by availing loans in the name of the petitioner by the respondent. Another claim is for the return of 70 sovereigns of gold ornaments or realisation of the value equivalent to the same. The claim regarding the realisation of Rs.4,00,000/and also past maintenance are raised. The only contention in the application is that the claim for past maintenance pertaining to the wife is not allowable, as she is employed and receiving a good amount as salary. But the husband is bound to provide maintenance to the minor children. On going through the documents produced in support of the application this Court was _prima facie_ convinced that the petitioner in the OP is entitled to get an interim order of attachment as the respondent in the OP may dispose of the property with a view to defeat the execution of the decree if any passed in favour of the petitioner. The property now offered by the respondent through I.A.No.2 of 2022 does not appear to be sufficient for the satisfaction of the decree 4 O.P.(FC)No.729 of 2022 in the event passed in favour of the petitioner in the OP. Therefore, a release of the attachment would adversely affect the right of the petitioner in the OP. So, the prayer for lifting of attachment cannot be ordered at this stage. Point is found against the petitioner.” 5. Before the Family Court, the respondent-wife opposed the relief sought for in I.A.No.2 of 2022 in O.P.No.1018 of 2020 for substituting the petition schedule property with another property owned by the petitioner-husband, by contending that the property offered in I.A.No.2 of 2022, having an extent of 26 cents, is situated in a remote area, without proper road access which is not sufficient to satisfy the decree to be passed in O.P.No.1018 of 2020. The learned counsel for the respondent would place reliance on the decision of the High Court of Calcutta in **Premraj Mundra v. Md.Maneck Gazi and others [AIR 1951 Cal 156]** . 6. During the course of arguments, on a query made by this Court, the learned counsel for the petitioner-husband would submit that the petitioner did not produce any valuation report, location sketch, etc. of the property offered as security in I.A.No.2 of 2022 in O.P.No.1018 of 2020, before the Family Court, to show that the said property is sufficient to satisfy the decree to be passed in O.P.No.1018 of 2020. In the absence of 5 ## O.P.(FC)No.729 of 2022 any such materials, the Family Court cannot be found fault with in rejecting the relief sought for in I.A.No.2 of 2022 in O.P.No.1018 of 2020. 7. Article 227 of the Constitution of India deals with power of superintendence over all courts by the High Court. Under clause (1) of Article 227 of the Constitution, every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction. 8. In **Shalini Shyam Shetty v. Rajendra Shankar Patil [(2010) 8 SCC 329]** the Apex Court, while analysing the scope and ambit of the power of superintendence under Article 227 of the Constitution, held that the object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under Article 227 is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to the High Court. 9. In **Jai Singh v. Municipal Corporation of Delhi** 6 O.P.(FC)No.729 of 2022 **[(2010) 9 SCC 385]** , while considering the nature and scope of the powers under Article 227 of the Constitution of India, the Apex Court held that, undoubtedly the High Court, under Article 227 of the Constitution, has the jurisdiction to ensure that all subordinate courts, as well as statutory or quasi-judicial tribunals exercise the powers vested in them, within the bounds of their authority. The High Court has the power and the jurisdiction to ensure that they act in accordance with the well established principles of law. The exercise of jurisdiction must be within the well recognised constraints. It cannot be exercised like a 'bull in a china shop', to correct all errors of the judgment of a court or tribunal, acting within the limits of its jurisdiction. This correctional jurisdiction can be exercised in cases where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice. 10. In **K.V.S. Ram v. Bangalore Metropolitan Transport Corporation [(2015) 12 SCC 39]** the Apex Court held that, in exercise of the power of superintendence under Article 227 of the Constitution of India, the High Court can interfere with the order of the court or tribunal only when there has been a patent perversity in the orders of the tribunal and courts subordinate to it or where there has been gross and 7 O.P.(FC)No.729 of 2022 ## manifest failure of justice or the basic principles of natural justice have been flouted. 11. In **Sobhana Nair K.N. v. Shaji S.G. Nair [2016 (1) KHC 1]** a Division Bench of this Court held that, the law is well settled by a catena of decisions of the Apex Court that in proceedings under Article 227 of the Constitution of India, this Court cannot sit in appeal over the findings recorded by the lower court or tribunal and the jurisdiction of this Court is only supervisory in nature and not that of an appellate court. Therefore, no interference under Article 227 of the Constitution is called for, unless this Court finds that the lower court or tribunal has committed manifest error, or the reasoning is palpably perverse or patently unreasonable, or the decision of the lower court or tribunal is in direct conflict with settled principles of law. 12. In view of the law laid down in the decisions referred to supra, the High Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India cannot sit in appeal over the findings recorded by a lower court or tribunal. The supervisory jurisdiction cannot be exercised to correct all errors of the order or judgment of a lower court or tribunal, acting within the limits of its jurisdiction. The correctional jurisdiction 8 ## O.P.(FC)No.729 of 2022 under Article 227 can be exercised only in a case where the order or judgment of a lower court or tribunal has been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice. Therefore, no interference under Article 227 is called for, unless the High Court finds that the lower court or tribunal has committed manifest error, or the reasoning is palpably perverse or patently unreasonable, or the decision of the lower court or tribunal is in direct conflict with settled principles of law or where there has been gross and manifest failure of justice or the basic principles of natural justice have been flouted. 13. As already noticed hereinbefore, the Family Court dismissed I.A.No.2 of 2022 in O.P.No.1018 of 2020, since the petitioner did not produce any valuation report, location sketch, etc. of the property offered as security in I.A.No.2 of 2022 in O.P.No.1018 of 2020, to show that the said property is sufficient to satisfy the decree to be passed in O.P.No.1018 of 2020. In the absence of any such materials, the Family Court cannot be found fault with in rejecting the relief sought for in I.A.No.2 of 2022 in O.P.No.1018 of 2020. In such circumstances, no interference of this Court is warranted, in exercise of the supervisory jurisdiction under Article 227 of the Constitution of India on Ext.P6 order 9 O.P.(FC)No.729 of 2022 dated 24.05.2022 to the extent of dismissing I.A.No.2 of 2022 in O.P.No.1018 of 2020. In the result, the challenge made in this original petition against Ext.P6 order dated 24.05.2022 of the Family Court, Kannur, to the extent of dismissing I.A.No.2 of 2022 in O.P.No.1018 of 2020 fails, for the aforesaid reason, and the original petition is accordingly dismissed; however, without prejudice to the right of the petitioner to file a fresh application before the Family Court, with proper pleadings and materials. Sd/- ## **ANIL K. NARENDRAN JUDGE** Sd/- **P.G. AJITHKUMAR JUDGE** **yd** 10 O.P.(FC)No.729 of 2022 ## **APPENDIX** **PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE PETITION IN OP 1018/2020 ON THE FILES FAMILY COURT KANNUR** **Exhibit P2 TRUE COPY OF THE AFFIDAVIT WITH PETITION IN IA 2/2020 IN OP 1018/2020 ON THE FILES OF FAMILY COURT, KANNUR Exhibit P3 TRUE COPY OF THE ORDER DATED 23-1-2020 IN IA 2/2020 IN OP 1018/2020 ON THE FILES OF FAMILY COURT, KANNUR. Exhibit P4 TRUE COPY OF THE AFFIDAVIT WITH PETITION IN IA NO. 02/2022 IN OP 1018/2020 ON THE FILES OF FAMILY COURT KANNUR Exhibit P5 TRUE COPY OF THE COUNTER STATEMENT FILED BY THE RESPONDENT IN IA 03/2022 IN O.P. 1018/2020 Exhibit P6 TRUE COPY OF THE COMMON ORDER IN IA 1/2021 & IA 2/2022 IN OP 1018/2020 ON THE FILES OF FAMILY COURT, KANNUR DATED 24-05-2022**