Ashla Roy v. Thomas Joseph

O.P.(FC)No.188 of 2023 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** # **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR WEDNESDAY, THE 12[TH] DAY OF APRIL 2023 / 22ND CHAITHRA,** ## **1945** **OP (FC) NO. 188 OF 2023** **AGAINST THE ORDER IN I.A.NO.2 OF 2022 IN O.P.(SMA)NO.14 OF 2022 OF FAMILY COURT,KOLLAM** ## **PETITIONER:** **ASHLA ROY AGED 37 YEARS DAUGHTER OF T.S ROY, MARYLAND, KADAPPAKKADA, KOLLAM EAST VILLAGE, KOLLAM TALUK., PIN - 691008 BY ADVS. V.JOHN MANI VARGHESE SABU SETHULAKSHMI K.K. SAM CHERIAN SHAMEENA K.Y. BIJIN B.** ## **RESPONDENT:** **THOMAS JOSEPH AGED 40 YEARS MANIMALAKALLAKATHU HOUSE, PARASAKTHI ROAD, MUDAVOOR P.O, VAZHAPPILLY, MUVATTUPUZHA, ERNAKULAM DISTRICT, NOW WORKING AT CLOUD STACK ENGINEER, M/S I.P SOFT, THE LEADENHALL BUILDING, 122, LEADENHALL STREET, LONDON, BC 3V 4AB, UNITED KINGDOM, RESIDING AT 3 BLENHEIM COURT, MALMERSWELL ROAD, HIGH WYCOMBE, BUCKINGHAMSHIRE, HP136LY, UNITED KINGDOM, PIN - 686669** **THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 12.04.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** O.P.(FC)No.188 of 2023 2 ## **JUDGMENT** ## **Anil K. Narendran, J.** The petitioner filed O.P.(SMA)No.14 of 2022 before the Family Court, Kollam, which was one filed against the respondent-husband, seeking a decree of divorce to dissolve the marriage solemnised between them on 13.02.2022. In that original petition, the respondent-husband was set ex-parte on 06.10.2022. He filed I.A.No.2 of 2022 on 14.11.2022, invoking the provisions under Order IX Rule 7 of the Code of Civil Procedure, 1908, to set aside the order, whereby he was set exparte. The petitioner-wife filed objection, opposing the relief sought for in that application. The Family Court, by the order dated 16.03.2022, allowed that application. The said order reads thus; “Objection filed. Heard. Considered the objection. This is an OP filed on 07.02.2022 and the respondent was set exparte. Now, he had filed petition to set aside ex-parte order with an intention to settle the case or to proceed with the case, so as to get an order on merit. Hence, set aside the ex-parte order.” Feeling aggrieved, the petitioner is before this Court in this original petition, invoking the supervisory jurisdiction of this O.P.(FC)No.188 of 2023 3 Court under Article 227 of the Constitution of India. 2. Heard the learned counsel for the petitioner-wife. Considering the nature of relief proposed to be granted, service of notice on the respondent-husband is dispensed with. 3. The issue that arises for consideration in this original petition is as to whether any interference is warranted on Ext.P6 order dated 16.03.2023 in I.A.No.2 of 2022 in O.P. (SMA)No.14 of 2022, whereby the application filed by the respondent-husband, invoking the provisions under Order IX Rule 7 of the Code of Civil Procedure, to set aside the order, whereby he was set ex-parte stands allowed for the reasons stated therein. 4. 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. 5. 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 ## O.P.(FC)No.188 of 2023 4 227 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. 6. In **Jai Singh v. Municipal Corporation of Delhi [(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 O.P.(FC)No.188 of 2023 5 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. 7. 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 manifest failure of justice or the basic principles of natural justice have been flouted. 8. 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. O.P.(FC)No.188 of 2023 6 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. 9. 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 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 O.P.(FC)No.188 of 2023 7 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. 10. Viewed in the light of the law laid down in the decisions referred to supra, it cannot be said that while passing the impugned order dated 16.03.2023 in I.A.No.2 of 2022 in O.P.(SMA)No.14 of 2022, the Family Court has committed a material irregularity, warranting interference by this Court in exercise of the supervisory jurisdiction under Article 227 of the Constitution of India. Before the Family Court, the petitioner herein was set ex-parte on 06.10.2022 and the case was posted to 28.10.2022. When the original petition was taken up for consideration on 28.10.2022, the learned counsel for the petitioner herein sought time to file an application to set aside the ex-parte order and thereafter I.A.No.2 of 2022 was filed, wherein it was stated that his power of attorney holder was in a difficult position to travel from Muvattupuzha to Kollam due to covid and post-covid ailments. Considering the facts and circumstances of the case, it cannot also be said that the reasoning of the Family Court in the order dated 16.03.2023 is either perverse or patently illegal. In such circumstances, we O.P.(FC)No.188 of 2023 **==> picture [7 x 8] intentionally omitted <==** find no reason to interfere with Ext.P6 order dated 16.03.2023 of the Family Court, Kollam in I.A.No.2 of 2022 in O.P. (SMA)No.14 of 2022. In the result, this original petition fails and the same is accordingly dismissed. Sd/- **ANIL K.NARENDRAN JUDGE** Sd/- **P.G. AJITHKUMAR JUDGE** **yd** O.P.(FC)No.188 of 2023 9 ## **APPENDIX** ## **PETITIONER EXHIBITS** **Exhibit P1 A TRUE COPY OF THE OP(SMA) NO. 14 OF 2022 BEFORE THE FAMILY COURT, KOLLAM Exhibit P1(a) A TRUE COPY OF THE B DIARY OF THE OP(SMA) NO. 14 OF 2022 PENDING ON THE FILES OF FAMILY COURT, KOLLAM Exhibit P2 A TRUE COPY OF IA NO. 02/2022 IN OP (SMA) NO.14/2022 OF FAMILY COURT KOLLAM Exhibit P3 (a) A TRUE COPY OF THE B DIARY IN OP NO. 1472 OF 2019 ON THE FILES OF FAMILY COURT, KOLLAM Exhibit P3(b) A TRUE COPY OF THE B DIARY IN OP(GW) NO. 5 OF 2020 N THE FILES OF FAMILY COURT, KOLLAM Exhibit P3(c) A TRUE COPY OF THE B DIARY IN MC NO. 370 OF 2019 ON THE FILES OF FAMILY COURT, KOLLAM Exhibit P4 A TRUE COPY OF THE IA NO. 3 OF 2022 IN OP (SMA) 14 OF 2022 OF THE FAMILY COURT, KOLLAM Exhibit P5 A TRUE COPY OF THE OBJECTION DATED 28.01.2023 IN IA NO. 2 OF 2022 IN OP(SMA) 14 OF 2022 OF THE FAMILY COURT, KOLLAM Exhibit P6 A TRUE COPY OF THE ORDER DATED 16.03.2023 OF THE FAMILY COURT KOLLAM IN IA NO. 2 OF 2022 IN OP(SMA) NO. 14 OF 2022**