Bino Joseph v. Neena Cherian

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** # **`THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN`** ``` & ``` ``` THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR ``` ``` MONDAY, THE 23[RD] DAY OF JANUARY 2023/3RD MAGHA, 1944 ``` ``` OP (FC) NO. 38 OF 2023 ``` ``` AGAINST THE ORDER DATED 07.07.2022 IN I.A.NO.18 OF 2022 IN O.P.NO.1335 OF 2017 OF THE FAMILY COURT, ETTUMANOOR, ``` ## **`KOTTAYAM`** ## **`PETITIONER/PETITIONER/RESPONDENT:`** ``` BINO JOSEPH, AGED 44 YEARS, S/O. LATE PATHIPARAMPIL V JOSEPH, PATHIPARAMPIL HOUSE, CHANGANASSERY P O, VAZHAPALLY VILLAGE, CHANGANASSERY TALUK, KOTTAYAM DISTRICT, PIN - 686103 ``` ``` BY ADVS.K.B.GANGESH SMITHA CHATHANARAMBATH ATHIRA A.MENON AMAL S KUMAR ``` ## **`RESPONDENT/RESPONDENT/PETITIONER:`** ``` NEENA CHERIAN, AGED 40 YEARS, D/O. P J CHERIAN, HOUSE NO. UP 7/245, ULLOOR VILLAGE, MEDICAL COLLEGE P O, THIRUVANANTHAPURAM TALUK, THIRUVANANTHAPURAM DISTRICT, PIN - 695011 ``` ``` THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 23.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` -2- O.P.(FC)No.38 of 2023 ## **JUDGMENT** ## Anil K. Narendran, J. The petitioner, who is the respondent in O.P.No.1335 of 2017 on the file of the Family Court, Kottayam at Ettumanoor, which was one filed by the respondent herein-wife against the petitioner-husband for return of money, declaration of title over immovable properties and recovery of possession of various movable properties. In the said original petition, the petitioner raised a counter claim for Rs.1,65,30,665/-. By the judgment and decree dated 29.11.2021, the Family Court allowed O.P.No.1335 of 2017 and directed the petitioner herein-husband to pay the respondent herein-wife a total sum of Rs.1,54,75,270/- with interest at the rate of 6% per annum from the date of decree. The claim made by the respondentwife for declaration of title over immovable properties and for return of movable properties was dismissed. The counter claim made by the petitioner-husband was also dismissed. The judgment and decree of the Family Court dated 29.11.2021 in O.P.No.1335 of 2017 is under challenge in Mat.Appeal No.201 of 2022 filed by the petitioner-husband -3- O.P.(FC)No.38 of 2023 before this Court, under Section 19(1) of the Family Courts Act, 1984. In that appeal, in I.A.No.1 of 2022, this Court granted Ext.P1 interim order dated 17.03.2022, which reads thus; “Execution of the impugned judgment is stayed on condition that the appellant furnishes security for the relief granted to the satisfaction of the Family Court within a period of two months.” The said appeal and also a connected matter, i.e., Mat.Appeal No.179 of 2022 are pending before this Court. 2. After Ext.P1 interim order in I.A.No.1 of 2022 in Mat.Appeal No.201 of 2022, the petitioner-husband moved I.A.No.18 of 2022 in O.P.No.1335 of 2017 (Ext.P2), furnishing the property in the name of his mother, having an extent of 2.84 Ares with a residential house having a plinth area of 2530 square feet, as security, along with Ext.P3 valuation report of one Sarathkumar K.P., who is holding ‘Engineer A’ registration with Registration No.E-14125/20/EA-5917/KLM. The respondent-wife, who is the decree holder, filed Ext.P4 objection dated 18.05.2022. After considering the rival contentions, the Family Court, by Ext.P5 order dated -4- O.P.(FC)No.38 of 2023 07.07.2022 dismissed I.A.No.18 of 2022 in O.P.No.1335 of 2017. The reasoning of the Family Court in Ext.P5 order reads thus; “As per the order of the Hon’ble High Court dated 17.03.2022 in I.A.No.1 of 2022 in Mat.Appeal No.201 of 2022, the petitioner is to furnish security for the relief granted to the satisfaction of this court. The petitioner has offered the property of the mother, though the petitioner says that it is his property. A perusal of the title deed shows that it does not belong to the petitioner. The value shown is only Rs.79,000/. No valuation statement of the Village Officer is produced. No affidavit is also filed by the title holder of the property. Therefore the security furnished cannot be accepted. Hence the petition is only to be dismissed. Accordingly it is dismissed.” The document marked as Ext.P6 is an affidavit sworn to by the petitioner’s mother, which is one dated 12.10.2022 and that marked as Ext.P7 is the fair value notification dated 30.03.2022 issued under sub-section (1B) of Section 28A of the Kerala Stamp Act, 1959, fixing the fair value of residential plot with Corporation/Municipality/Panchayat road access in Re-survey No.34/1, 55 of Vazhappally Kizhakku Village in Changanacherry Taluk as Rs.16,50,000/- per Are. -5- ## O.P.(FC)No.38 of 2023 3. The petitioner has filed this original petition invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India, seeking an order to set aside Ext.P5 order dated 07.07.2022 of the Family Court, Kottayam at Ettumanoor in I.A.No.18 of 2022 in O.P.No.1335 of 2017 and an order directing the Family Court to accept the security now furnished by the petitioner as per Ext.P2 interim application, as sufficient security for the decree amount mentioned in the judgment and decree dated 29.11.2021 in O.P.No.1335 of 2017, as directed by this Court in Ext.P1 interim order dated 17.03.2022 in I.A.No.1 of 2022 in Mat.Appeal No.201 of 2022. 4. Heard the learned counsel for the petitioner. Considering the nature of relief proposed to be granted, service of notice on the respondent is dispensed with. 5. The petitioner has invoked the supervisory jurisdiction of this Court under Article 227 of the Constitution of India, to challenge Ext.P5 order dated 07.07.2022 in I.A.No.18 of 2022 in O.P.No.1335 of 2017 mainly relying on Ext.P6 affidavit dated 12.10.2022 sworn to by his mother, who -6- O.P.(FC)No.38 of 2023 is the owner of the property, which was offered as security, and Ext.P7 fair value notification dated 30.03.2022. Exts.P6 and P7 were not before the Family Court, when the said Court passed Ext.P5 order dated 07.07.2022. It is not discernible from Ext.P5 order as to whether the Family Court considered Ext.P3 valuation while dismissing I.A.No.18 of 2022 in O.P.No.1335 of 2017. In the said order, the Family Court noticed that no valuation statement of the Village Officer is produced. In terms of the direction contained in Ext.P1 order dated 17.03.2022 in I.A.No.1 of 2022 in Mat.Appeal No.201 of 2022, before accepting the security furnished by the petitioner, the Family Court has to record its satisfaction that it is sufficient for the entire decree debt. 6. 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. 7. In **Shalini Shyam Shetty v. Rajendra Shankar** -7- O.P.(FC)No.38 of 2023 **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. 8. 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 quasijudicial tribunals exercise the powers vested in them, within the bounds of their authority. The High Court has the power -8- O.P.(FC)No.38 of 2023 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. 9. 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. 10. In **Sobhana Nair K.N. v. Shaji S.G. Nair [2016** **(1) KHC 1]** a Division Bench of this Court held that, the law -9- O.P.(FC)No.38 of 2023 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. 11. 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 -10- O.P.(FC)No.38 of 2023 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. 12. Admittedly, Ext.P6 affidavit and Ext.P7 fair value notification were not before the Family Court when the said court passed Ext.P5 order dated 07.07.2022 in I.A.No.18 of 2022 in O.P.No.1335 of 2017. Therefore, the Family Court cannot be found fault with in dismissing that interlocutory application for the reasons stated in Ext.P5 order. In the above circumstances, we find no reason to interfere with Ext.P5 order dated 07.07.2022 of the Family Court, Kottayam at Ettumanoor in I.A.No.18 of 2022 in O.P.No.1335 of 2017 in exercise of the supervisory jurisdiction under Article 227 of -11- O.P.(FC)No.38 of 2023 the Constitution of India. In the result, this original petition fails and the same is accordingly dismissed. It is made clear that this judgment will not stand in the way of the petitioner filing a fresh application before the Family Court, with proper materials, after seeking extension of time from this Court in the pending Matrimonial Appeal. Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- ## **P.G. AJITHKUMAR, JUDGE** AV/30/1 -12- O.P.(FC)No.38 of 2023 ## **`APPENDIX OF OP (FC) 38/2023`** ``` PETITIONER EXHIBITS ``` - **`Exhibit P1 TRUE COPY OF THE INTERIM ORDER OF THIS HON'BLE COURT IN IA NO. 1/2022 IN MAT. APPEAL NO. 201/2022 DATED 17.03.2022`** - **`Exhibit P2 TRUE COPY OF IA NO. 18/2022 IN OP NO. 1335/2017 ON THE FILE OF FAMILY COURT, KOTTAYAM AT ETTUMANNUR`** - **`Exhibit P3 TRUE COPY OF EXPERT VALUATION REPORT DATED 14.04.2021 FILED ALONG WITH EXT. P2`** ``` Exhibit P4 TRUE COPY OF OBJECTION FILED BY THE RESPONDENT TO EXT. P2 ``` ``` Exhibit P5 ``` - **`EXHIBIT-P5:TRUE COPY OF ORDER DATED 07.07.2022 IN IA NO. 18/2022 IN OP NO. 1335/2017 PASSED BY FAMILY COURT, KOTTAYAM AT ETTUMANNUR`** ``` Exhibit6 NOTARIZED AFFIDAVIT DATED 12.10.2022 EXECUTED BY THE PETITIONER'S MOTHER ``` ``` Exhibit P7 TRUE COPY OF THE FAIR VALUE OF THE PROPERTY IN ISSUE AS PER GOVERNMENT NOTIFICATION DATED 30.03.2022 AVAILABLE IN GOVERNMENT WEBSITE ```