Fakhrudeen Razi v. Nissa

## **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** **O.P.(FC) NO. 184 OF 2023 AGAINST THE ORDER DATED 17.11.2022 IN I.A.NO.2 OF 2022 IN O.P.(OTHERS) NO.318 OF 2022 OF THE FAMILY COURT, CHAVARA** ## **PETITIONERS:** **1 FAKHRUDEEN RAZI, AGED 38 YEARS, S/O SHAHUDEEN MAHDOON PILLA LABBA, RESIDING AT VILAYIL VEEDU, PALLIMUKKU, KURIYODU P.O, CHADAYAMANGALAM VILLAGE, KOTTARAKKARA TALUK, KOLLAM-691583. NOW WORKING AT SHIFAJIZAN POLY CLINIK, NEAR OLD JAWAZAT, OMAR BIN KHATAB STREET, [ REPRESENTED BY HIS POWER OF HOLDER SHAHUDEEN, AGED 64 YEARS, S/O MAHDDON PILLA LABBA RESIDING AT VILAYIL VEEDU, PALLIMUKKU, KURIYODU P.O, CHADAYAMANGALAM VILLAGE, KOTTARAKKARA TALUK, KOLLAM-691583]** - **2 JAMEELA BEEVI, AGED 58 YEARS, D/O MUHAMMAD HANEEFA, RESIDING AT VILAYIL VEEDU, PALLIMUKKU, KURIYODU P.O, CHADAYAMANGALAM VILLAGE, KOTTARAKKARA TALUK, KOLLAM-691583, PIN – 691583.** **3 SHAHUDEEN, AGED 64 YEARS, S/O MAHDDON PILLA LABBA, RESIDING AT VILAYIL VEEDU, PALLIMUKKU, KURIYODU P.O, CHADAYAMANGALAM VILLAGE, KOTTARAKKARA TALUK, KOLLAM-691583, PIN – 691583.** **BY ADVS.** **O.A.NURIYA REVATHY P. MANOHARAN AZHAR ASSEES ANAND B. MENON** 2 O.P.(FC) No.184 of 2023 ## **RESPONDENT:** ## **NISSA** **AGED 35 YEARS, D/O IQBAL, HARIS MANZIL, CHAVARA MURI, CHAVARA P.O, CHAVARA VILLAGE, KARUNAGAPILLY TALUK, KOLLAM-691583, PIN – 691583.** **THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 12.04.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 O.P.(FC) No.184 of 2023 ## **JUDGMENT** ## P.G. Ajithkumar, J. This Original Petition under Article 227 of the Constitution of India is filed by the respondents in O.P. (Others) No.318 of 2022 on the file of the Family Court, Chavara. They are aggrieved of Ext.P7 order dated 09.11.2022 of the Family Court in I.A.No.2 of 2022. As per the said order, an ad interim injunction restraining the petitioners from alienating, encumbering or trespassing upon the petition schedule property was granted. 2. When this matter has come up for admission today, we heard the learned counsel for the petitioners in detail. 3. O.P.(Others) No.318 of 2022 was filed by the respondent for a decree setting aside the decree in O.P. (Money) No.798 of 2016 of the said court. In that original petition, the respondent has filed I.A.No.2 of 2023 seeking a temporary prohibitory injunction restraining the petitioners herein from alienating, encumbering or trespassing upon the petition schedule property. Injunction against commission of 4 O.P.(FC) No.184 of 2023 acts of waste in the property is also claimed. The Family Court on 09.11.2022 granted an _ex parte_ order of injunction, which reads as follows:- “Heard. Perused affidavit filed and documents produced. This court is satisfied that the petitioner has got a prima facie case in favour of granting of an order of ad-interim injunction order and delay in passing such order will defeat the very purpose of the original petition. Hence, the respondents are restrained by an order of interim injunction as prayed for. Comply Order XXXIX, Rule 3, C.P.C. Return of notice to 03.02.2022.” 4. The said order was passed by the Family Court under Order XXXIX, Rule 1 of the Code of Civil Procedure, 1908. The petitioners are aggrieved by the said order, and therefore, they want this Court to invoke the powers under Article 227 of the Constitution of India to set aside the said order. Ext.P7 is only an _ex parte_ ad interim order. When an _ex parte_ order of injunction is granted, the court is expected to dispose of the application, in which that order is granted, within 30 days from the date on which the injunction was granted in view of provisions of Rule 3A, Order XXXIX of the Code. 5 O.P.(FC) No.184 of 2023 5. The learned counsel appearing for the petitioners would submit that objection to I.A.No.2 of 2022 is yet to be filed by the petitioners. Ext.P7 was ordered on 09.11.2022. The petitioners entered appearance before the Family Court, but they did not file any objection to I.A.No.2 of 2022 so far. That may be the reason why the Family Court did not pass a peremptory order on I.A.No.2 of 2022 in compliance with Rule 3A of Order XXXIX of the Code. Ext.P7 being only an _ex parte_ interim order, this Court is not expected to invoke the powers under Article 227 of the Constitution of India to examine whether the said order is perverse or illegal. It is for the Family Court to dispose of I.A.No.2 of 2022 on merits. 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. 6 O.P.(FC) No.184 of 2023 7. 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. 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 quasi-judicial tribunals 7 ## O.P.(FC) No.184 of 2023 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. 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. 8 O.P.(FC) No.184 of 2023 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 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 9 O.P.(FC) No.184 of 2023 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 this Court finds that the Family Court has committed manifest error in passing Ext.P7 order. We find no such manifest error in Ext.P7, which is only an ad interim order. 12. The petitioners can certainly approach the Family Court for a disposal of I.A.No.2 of 2022 on merits. They have to file objection to I.A.No.2 of 2022 and on their filing objection, the Family Court will certainly proceed to dispose of I.A.No.2 of 2022, after hearing both sides. Accordingly, this Original Petition is disposed of with the following directions:- - i) The petitioners shall file objection to I.A.No.2 of 2022 within two weeks from the date of production of the certified copy of the judgment; and - ii) Once the objection is filed, the Family Court, 10 ## O.P.(FC) No.184 of 2023 Chavara will dispose of I.A.No.2 of 2022, after hearing both sides, within a period of one month from the date of filing of the objection. **Sd/-** **ANIL K. NARENDRAN, JUDGE** **Sd/P.G. AJITHKUMAR, JUDGE** dkr 11 O.P.(FC) No.184 of 2023 ## **APPENDIX OF OP (FC) 184/2023** ## **PETITIONER EXHIBITS** **EXHIBIT P1 A TRUE COPY OF THE POWER OF ATTORNEY OF THE FIRST PETITIONER DATED 10.02.2023** - **EXHIBIT P2 A TRUE COPY OF ORIGINAL PETITION FILED BY THE RESPONDENT HEREIN IN OP (MONEY) NO. 798/2016 BEFORE THE FAMILY COURT, CHAVARA DATED NIL** - **EXHIBIT P3 A TRUE COPY OF THE STATEMENT OF OBJECTION FILED BY THE PETITIONERS HEREIN IN OP (MONEY) NO. 798/2016 BEFORE THE FAMILY COURT, CHAVARA DATED 24.12.2018** - **EXHIBIT P4 A TRUE COPY OF THE JUDGEMENT AND DECREE DATED 09.05.2022 PASSED BY THE FAMILY COURT, CHAVARA IN OP (MONEY) NO. 798/2016** - **EXHIBIT P5 A TRUE COPY OF O.P (OTHERS) NO. 318/2022 FILED BY RESPONDENT BEFORE THE FAMILY COURT, CHAVARA DATED NIL** - **EXHIBIT P6 A TRUE COPY OF I.A NO. 2 OF 2022 IN O.P (OTHERS) NO. 318/2022 DATED 05.11.2022 FILED BY THE RESPONDENT BEFORE THE FAMILY COURT, CHAVARA TO ATTACH THE PETITION SCHEDULE PROPERTY** - **EXHIBIT P7** **A TRUE COPY OF THE INJUNCTION ORDER DATED 17.11.2022 PASSED BY THE FAMILY COURT, CHAVARA IN I.A NO. 2 OF 2022 IN O.P (OTHERS) NO. 318/2022**