Alex T. Mathew v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **TUESDAY, THE 24TH DAY OF SEPTEMBER 2019 / 2ND ASWINA, 1941** ## **OP(C).No.1357 OF 2019** **AGAINST THE ORDER IN IA NO.1131/2019 DATED 25-04-2019 OF DISTRICT JUDGE (VACATION), KOTTAYAM** **IN OS NO.226/2019 OF ADDITIONAL MUNSIFF COURT, KOTTAYAM** ## **PETITIONER/PETITIONER/PLAINTIFF:** **ALEX T. MATHEW, AGED 50 YEARS, SON OF LATE V.C. MATHEW, BUSINESS, VANIYAPURACKAL HOUSE, MATTOM, CHANGANACHERRY P.O., CHANGANACHERRY - 686 101, VAZHAPPALLY EAST VILLAGE, CHANGANACHERRY TALUK, KOTTAYAM DISTRICT, NOW RESIDING AT VILLA NO.8, “SHELTERS HUMMOCK”, MANGANAM P.O., KOTTAYAM - 686 018, VIJAYAPURAM VILLAGE, KOTTAYAM TALUK, KOTTAYAM DISTRICT.** **BY ADVS. SRI.B.ASHOK SHENOY SMT. C.G. PREETHA SRI.K.V.GEORGE SRI.P.N.RAJAGOPALAN NAIR SRI.P.S.GIREESH SRI.RIYAL DEVASSY** ## **RESPONDENT/S:** **1 STATE OF KERALA, REPRESENTED BY ADDITIONAL CHIEF SECRETARY (EXCISE), SECRETARIAT, THIRUVANANTHAPURAM - 695 001, THYCAUD VILLAGE, THIRUVANANTHAPURAM TALUK, THIRUVANANTHAPURAM DISTRICT. 2 THE EXCISE COMMISSIONER, COMMISSIONERATE OF EXCISE, EXCISE HEAD QUARTERS, NANDAVANAM, VIKAS BHAVAN P.O., THIRUVANANTHAPURAM - 695 033, KOWDIAR VILLAGE, THIRUVANANTHAPURAM TALUK, THIRUVANANTHAPURAM DISTRICT. 3 THE DIVISIONAL DEPUTY EXCISE COMMISSIONER, COLLECTORATE, KOTTAYAM - 686 002, MUTTAMBALAM VILLAGE, KOTTAYAM TALUK, KOTTAYAM DISTRICT.** O.P.(C) No.1357 of 2019 2 - **4 THE DISTRICT COLLECTOR, COLLECTORATE, KOTTAYAM - 686 002, MUTTAMBALAM VILLAGE, KOTTAYAM TALUK, KOTTAYAM DISTRICT.** - **5 HOTEL VANI, CHANGANACHERRY P.O., CHANGANACHERRY - 686 101, VAZHAPPALLY EAST VILLAGE, CHANGANACHERRY TALUK, KOTTAYAM DISTRICT, REPRESENTED BY ITS MANAGING PARTNER, TESSY ALLEN, AGED 53 YEARS, WIFE OF LATE ALLEN T. MATHEW, VANIYAPURACKAL HOUSE, MATTOM, CHANGANACHERRY P.O., CHANGANACHERRY - 686 101, VAZHAPPALLY EAST VILLAGE, CHANGANACHERRY TALUK, KOTTAYAM DISTRICT.** - **6 ANIL J. MATHEW, AGED 52 YEARS, SON OF LATE V.C.MATHEW, VANIYAPURACKAL HOUSE, MATTOM, CHANGANACHERRY P.O., CHANGANACHERRY - 686 101, VAZHAPPALLY EAST VILLAGE, CHANGANACHERRY TALUK, KOTTAYAM DISTRICT.** - **7 TESSY ALLEN, AGED 53 YEARS, WIFE OF LATE ALLEN T. MATHEW, VANIYAPURACKAL HOUSE, MATTOM, CHANGANACHERRY P.O., CHANGANACHERRY - 686 101, VAZHAPPALLY EAST VILLAGE, CHANGANACHERRY TALUK, KOTTAYAM DISTRICT.** **BY ADVS. R1 TO R4 - SRI. M.I. JOHNSON, SENIOR GOVERNMENT PLEADER. R5-R7 SRI.C.C.THOMAS (SR.) SRI.M.G.KARTHIKEYAN SRI.NIREESH MATHEW** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 24.09.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** O.P.(C) No.1357 of 2019 3 **C.R.** ## **JUDGMENT** The question emerges for consideration in this original petition filed under Article 227 of the Constitution of India is, whether the Vacation Civil Court is vested with powers to pass a final order in any interlocutory application in view of the peremptory stipulations contained under Sec.19(2) of the Kerala Civil Courts Act, 1957. Brief material facts for the disposal of the original petition are as follows: 2. Petitioner is the plaintiff in O.S.No.226 of 2019 on the files of the Additional Munsiff's Court, Kottayam. Respondent Nos.1 to 7 herein are the defendant Nos.1 to 7 respectively in the aforesaid suit. The suit is filed seeking a decree of permanent prohibitory injunction restraining defendant Nos.1 to 4 and their men from renewing the Foreign Liquor Licence No.FL-32-2018-19 and any other category of licence with respect to 5[th] defendant, i.e., M/s. Hotel Vani. The suit was instituted by the petitioner since disputes and differences have arisen between him and respondents Nos.6 and 7, who are partners of the 5[th] respondent firm, and since the petitioner had by Ext.P2 letter issued to respondent Nos.2 and 3, revoked the authority ## O.P.(C) No.1357 of 2019 4 in favour of respondent Nos.6 and 7 to act for and on behalf of petitioner and the 5[th] respondent, in the matter of renewal of “Beer and Wine” Parlour Licence standing in favour of the 5[th] defendant, and due for renewal on 01.04.2019. 3. Along with the suit, petitioner had filed Ext.P4 application i.e., I.A.No.1131 of 2019, seeking an order of temporary injunction restraining defendant Nos.1 to 4 and their men from renewing the Foreign Liquor licence. Ext.P5 objection was filed for and on behalf of respondents 1 to 4, and after having heard the application, an interlocutory order was passed on 30.03.2019, directing respondents 1 to 4 not to renew the licence, and the case was posted to 09.04.2019. Respondents 5 to 7 entered appearance and have submitted an advance application to advance the Interlocutory Application, and accordingly it was posted to 04.04.2019, 06.04.2019 and 09.04.2019 respectively, and finally the Interlocutory Application was taken up for hearing on 11.04.2019 and the case was posted to 21.05.2019, i.e., on re-opening of the Court after summer vacation. However, the interlocutory order passed was extended up to the said date. O.P.(C) No.1357 of 2019 5 4. Matters being so, during the vacation, respondent Nos.5 to 7 filed Ext.P7 application before the District (Vacation) Court, Kottayam, to call for the suit from the trial court and hear and pass orders in Ext.P4 Interlocutory Application. Thereupon, the Vacation Court called the file in the suit, heard Ext.P4 application and has passed Ext.P8 final order, dismissing it, and also directing the plaintiff to pay the cost of the defendants and also vacating the injunction order earlier passed by the trial court on 30.03.2019 and on 11.04.2019, making it clear, and also clarifying that there is no bar in respondents 1 to 4 considering the application for renewal of Foreign Liquor Licence in respect of the 5[th] defendant. Accordingly, the 3[rd] defendant has renewed the licence provisionally for the year 2019-2020, evident from Ext.P9. Case projected by the petitioner is that, there is inherent lack of jurisdiction and serious error in Ext.P8 order passed by the Vacation Judge, since there is no power vested with the Vacation Judge to take a final decision in any proceedings filed before it. 5. Respondents 5 to 7 have filed a detailed counter affidavit, refuting the allegations and claims 6 ## O.P.(C) No.1357 of 2019 and demands raised by the petitioner. Among other contentions, it is stated that, respondents 1 to 4 have appeared before the court below on 30.03.2019 and sought time for filing objection, on which date, the Additional Munsiff's Court has passed an order directing not to take decision regarding the matter in the suit and the case was posted to 09.04.2019. It is also the case of respondents 5 to 7 that they were not even made parties in the suit, and it was on 02.04.2019 they have filed application for getting themselves impleaded and thereafter filed application for advancing the case. 6. It is also submitted that, objections were filed, however the matter was not heard on 11.04.2019, and no orders were passed extending the interim order granted, in the open court. Respondents 5 to 7 also have a case that an application for extension of the interim order filed by the petitioner was heard without giving opportunity to the respondents, the order was extended, and the case was posted to 21.05.2019. It was thereupon that respondents 5 to 7 were constrained to move the application before the Vacation Judge, Kottayam, which, after hearing all the parties, has passed a considered order, vacating the interim order O.P.(C) No.1357 of 2019 7 passed by the learned Munsiff. It is also found in Ext.P8 that the suit is barred under Sec.54A of the Abkari Act, and so also as per Clause 3(f) of the re- constituted partnership deed between the petitioner and respondents 6 and 7, there is an arbitration clause and hence the suit is not maintainable. It is also contended that, there is no jurisdiction conferred on the Munsiff's Court, Kottayam for entertaining a dispute arisen within the jurisdiction of the Munsiff's Court, Changanacherry. Other contentions are also raised justifying Ext.P8 order passed by the Vacation Court. 7. I have heard Smt. C.G. Preetha, learned counsel appearing for the petitioner, Sri. M.I. Johnson, learned Senior Government Pleader appearing for respondents 1 to 4 and Sri. C.C. Thomas, learned Senior Counsel appearing for respondents 5 to 7, assisted by Advocate M.G. Karthikeyan, and perused the pleadings and the documents on record. **==> picture [397 x 12] intentionally omitted <==** question to be considered is, whether there is any jurisdictional error and illegality in Ext.P8 order passed by the Vacation Court. The question revolves around Sec.19(2) of the Kerala Civil Courts Act, 1957, O.P.(C) No.1357 of 2019 8 which read thus: _“_ _**19. Adjournment of Civil Court** .--(1) The High Court may permit the Civil Courts under its control to adjourn from time to time for periods not exceeding in the aggregate sixty days in each year._ _(2) During the adjournment of a Civil Court, the High Court shall nominate a District Judge for each District, who shall have the power to make provisional orders on all urgent matters and for such purpose, appeals, plaints and petitions and other matters which would ordinarily be presented to such Civil Court shall be received in the District Court and any such order shall, except on matters to be presented in the District Court itself, remain in force until such matter has been heard and decided by the Court having jurisdiction and in the case of orders passed on matters to be presented in the District Court itself, such order shall be an order passed by a Court having jurisdiction”._ 9. On a reading of the said provision, it is categoric and clear that the power vested with the Vacation Court is only to make provisional orders on all urgent matters. Which thus means, the provisional orders so passed by the Vacation Court on urgent matters will remain in force only till the matter is heard by the court concerned and such orders can only be treated as _ad interim_ orders passed by the courts of original jurisdiction, but for the vacation and specific conferment of power under Sec.19(2) of Act, 1957 on the Vacation Judge. However, on a reading of Ext.P8 order passed by the Vacation Judge, it is clear that the Interlocutory Application filed by the O.P.(C) No.1357 of 2019 9 petitioner before the Munsiff's Court was finally decided and was dismissed. Moreover, findings are rendered to the effect that the suit is not maintainable under law, consequent to the provisions of the Abkari Act, and Sec.8 of the Arbitration and Conciliation Act, 1996, since the parties have entered into an agreement to resolve the disputes resorting to arbitration proceedings. 10. Learned counsel for the petitioner in that regard has invited my attention to the judgment of a learned Single Judge of this Court in ' _**Viswambharan v. Damodaran Nair**_ ' [1988 (2) KLT 32] therein, it is held as follows in paragraph 2: _“2. I am not going into the merits of the matter fearing that any discussion is likely to embarrass the Munsiff who will have to pass order on the application. Anyhow, there was no dispute that the nominated District Judge acted illegally and without jurisdiction in passing the impugned order. Sec.19(1) of the Civil Courts Act authorises the High Court to permit the civil courts under its control to adjourn from time to time for periods not exceeding in the aggregate sixty days in each year. During such adjournment, when judicial work cannot be transacted, in order to meet urgent situations, under S.19(2), the High Court shall nominate a District Judge for each District, who shall have the power to make provisional orders on all urgent matters and for such purpose, receive plaints, appeals, petitions and other matters which would ordinarily be presented before the District Court or such other Civil courts subordinate to it which were so adjourned. Except on matters that could ordinarily be presented in the District Court, the order passed_ O.P.(C) No.1357 of 2019 10 _by the nominated District Judge could only be provisional on urgent matters and such orders could remain in force only until such matter has been heard and decided by the court having jurisdiction on it being seized of the matter after the reopening. But regarding matters to be presented before the District Court itself, irrespective of the fact that the District Court is also adjourned and the District Judge is acting only as the nominated District Judge under S.19(2), he can pass such orders as could be passed by a court having jurisdiction. That means in other matters to be presented before other courts which stand adjourned, his orders, except those that are provisional and on urgent matters, are without jurisdiction. This provision is intended to obviate the statements that is likely during vacation on account of the impossibility of getting provisional orders on urgent matters. An urgent-provisional order is a temporary order on an urgent matter provided for the present need or for the occasion as distinguished from a considered final order on the merits after hearing the parties or otherwise. When once such an order is passed the nominated District Judge cannot go on passing orders on the merits which will have to be passed by the regular courts. I do not mean to say that he cannot vacate the provisional order or pass other orders as the exigencies of the situation needs. But all the orders could only be provisional on urgent matters leaving the normal court to pass regular orders on the merits. Anything beyond that is without jurisdiction and illegal because of the jurisdictional impairment on account of the circumspection to the powers. (See Ramankutty v. Ayissakunhi (1987 (2) KLT 895). Even if both sides agree the nominal District Judge cannot exceed his powers under S.19(2) because consent of parties will not invest him with jurisdiction which he is not having”._ Therefore, relying upon the provisions of law and the judgment rendered by this Court in ' _**Viswambharan**_ ' ( _supra_ ), it is the contention of the learned counsel for the petitioner that Ext.P8 order cannot be O.P.(C) No.1357 of 2019 11 sustained under law. 11. On the other hand, learned Senior Counsel appearing for respondents 5 to 7 submitted that, Ext.P8 order is an appealable order, and therefore, the original petition filed by the petitioner cannot be sustained. Learned Senior Counsel in that regard has relied upon the judgments of this Court in ' _**Fr. Antony**_ _**Jino George v. Malabar Ayurvedics**_ ' [2009 (2) KLT 980] and ' _**Rev. C. Chrispus v. Rev. M. Robinson & Others**_ ' [2016 (4) KLJ 363]. It is also contended that, it was taking into account the peculiar fact situations and the nature of the order passed by the Additional Munsiff's Court, the Vacation Court has intervened in the matter and has dismissed the Interlocutory Application. 12. I have evaluated the rival submissions made across the Bar. In my considered opinion, Sec.19(2) of Act, 1957 itself is very clear that the Vacation Judge is only vested with powers to make provisional orders on urgent matters and there cannot be any dispute at all that Ext.P8 is a final order passed by the Vacation Court in the Interlocutory Application. It is also clear that findings are rendered to the effect that the suit is not maintainable under law for reasons of the O.P.(C) No.1357 of 2019 12 provisions of the Abkari Act and Sec.8 of the Arbitration and Conciliation Act, 1996. The question considered in ' _**Viswambharan**_ ' ( _supra_ ) by a learned Single Judge is almost identical in nature, and I am in respectful agreement with the said judgment. The judgments relied upon by the learned Senior Counsel appearing for respondents 5 to 7, are relating to the question whether the Interlocutory order passed by the Vacation Court is appealable or not, and held that the Vacation Court is passing the orders which should have been considered to be passed by Munsiff's Court, and therefore, appeal is maintainable under law. However, the facts and circumstances are entirely different in the case on hand, which has true bearing to the judgment rendered in ' _**Viswambharan**_ ' ( _supra_ ). 13. In my considered opinion, if and when there is jurisdictional error on the part of the Vacation Court in the matter of exercise of power under Sec.19(2) of the Kerala Civil Courts Act, 1957, this Court is vested with ample powers to consider the issue invoking the supervisory powers conferred under Article 227 of the Constitution of India. In this context, paragraph 9 of the judgment in _**'Viswambharan'**_ ( _supra_ ) is relevant, which read thus: O.P.(C) No.1357 of 2019 13 _“_ _**9** . It presents really an unhappy situation. Under Art.227 of the Constitution also this Court is having the power of interference in seeing that the Courts and Tribunals function within the limits of their authority. Art. 227 confers supervisory jurisdiction and at any rate that jurisdiction extends to see whether the limits of authority is exceeded. This Court can act even suo motu under Art. 227. The order under challenge exceeded the limits of authority under S.19(2) of the Civil Courts Act and the District Judge had no other authority to pass the order. It is a final order passed without authority and as such a nullity justifying interference for the purpose of quashing the same”._ 14. Therefore, taking into account the legal circumstances discussed above, I have no hesitation to hold that there is clear jurisdictional error exceeding the authority on the part of the Vacation Judge in passing Ext.P8 order, leading to illegal and excessive exercise of power conferred under law. Accordingly, I quash Ext.P8 order. Anyhow, based on the order passed by the Vacation Judge, the licence was renewed provisionally, and learned Senior Counsel appearing for respondents 5 to 7 submitted that, if closure is ordered, it will materially affect the partners of the firm including the petitioner, and also the employees working in the establishment. 14. In that view of the matter, there will be a direction to the Additional Munsiff's Court, Kottayam to consider I.A.No.1131/2019 in accordance with law, O.P.(C) No.1357 of 2019 14 after providing an opportunity of hearing to the petitioner as well as respondents, and attain finality at the earliest, and at any rate, within three weeks from the date of receipt of a copy of this judgment, without taking into account the observations and findings contained under Ext.P8 order passed by the Vacation Judge. Till such time, the provisional licence granted to respondents 5 to 7 will remain in force, and thereafter it will be guided by the orders passed by the court below, as directed above. It is also made clear, the directions and the observations contained above shall not be construed as any expression of opinion on the merits of the matter or rival interests of the parties. The original petition is allowed to the above extent. ## **Sd/-** ## **SHAJI P.CHALY** ## **JUDGE** St/25.09.2019 O.P.(C) No.1357 of 2019 15 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF RECONSTITUTED PARTNERSHIP DEED DATED 1/4/2009 EXECUTED BETWEEN THE PLAINTIFF AND DEFENDANTS NOS.6 AND 7. EXHIBIT P2 TRUE COPY OF LETTER DATED 7/3/2019 SUBMITTED BY THE PLAINTIFF TO DIVISIONAL ASSISTANT EXCISE COMMISSIONER, KOTTAYAM, WITH COPIES TO 2ND AND 3RD DEFENDANTS. EXHIBIT P3 TRUE COPY OF PLAINT DATED 26/3/2019 IN O.S.NO.226 OF 2019 SUBMITTED BY PLAINTIFF BEFORE THE HON'BLE MUNISFF'S COURT, KOTTAYAM. EXHIBIT P4 TRUE COPY OF THE INTERLOCUTORY APPLICATION - I.A.NO.1131 OF 2019 IN O.S.NO.226 OF 2019 DATED 26/3/2019 SUBMITTED BY PLAINTIFF BEFORE THE HON'BLE MUNSIFF'S COURT, KOTTAYAM. EXHIBIT P5 TRUE COPY OF THE OBJECTIONS IN I.A.NO.1131 OF 2019 IN O.S.NO.226 OF 2019 DATED 2/4/2019 SUBMITTED BY ADDITIONAL DISTRICT GOVERNMENT PLEADER FOR AND ON BEHALF OF DEFENDANTS NOS.1 TO 4. EXHIBIT P6 TRUE COPY OF THE OBJECTIONS IN I.A.NO.1131 OF 2019 IN O.S.NO.226 OF 2019 DATED 2/4/2019 SUBMITTED BY DEFENDANTS NOS.5, 6 AND 7 BEFORE THE HON'BLE MUNSIFF'S COURT, KOTTAYAM. EXHIBIT P7 TRUE COPY OF THE INTERLOCUTORY APPLICATION - I.A.NO.513 OF 2019 DATED 16/4/2019 FILED BY DEFENDANTS NOS.5 TO 7 BEFORE THE COURT OF DISTRICT JUDGE (VACATION), KOTTAYAM IN O.S.NO.226 OF 2019 ON THE FILE OF THE ADDITIONAL MUNSIFF'S COURT, KOTTAYAM. EXHIBIT P8 TRUE COPY OF THE ORDER DATED 25/4/2019 IN I.A.NO.1131 OF 2019 OF THE COURT OF DISTRICT JUDGE (VACATION), KOTTAYAM IN O.S.NO.226 OF 2019 ON THE FILE OF ADDITIONAL MUNSIFF'S COURT, KOTTAYAM.** O.P.(C) No.1357 of 2019 16 **EXHIBIT P9** **TRUE COPY OF LICENCE RENEWAL CERTIFICATE NO.FL-11 B.NO.KT-32 DATED 25/4/2019 ISSUED BY 3RD DEFENDANT TO 7TH DEFENDANT.** RESPONDENTS' EXHIBITS: NIL //TRUE COPY// P.S. TO JUDGE St/p