Harikrishnan M. and Sona Kurian v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **TUESDAY, THE 09TH DAY OF MARCH 2021 / 18TH PHALGUNA, 1942** ## **WP(C).No.5485 OF 2021(I)** ## **PETITIONERS:** |**1**|**SRI. HARIKRISHNAN M.**| |---|---| ||**AGED 20 YEARS**| ||**S/O. MURALI, PULINTHAZHE HOUSE,**| ||**KUTHIATHODU, THIRUMAMA BHAGOM,**| ||**PARAYAKADU P.O, THURAVOOR,**| ||**CHERTHALA, ALAPPUZHA DISTRICT,**| ||**KERALA - 688 540.**| |**2**|**MS. SONA KURIAN,**| ||**AGED 19 YEARS**| ||**D/O. SHIBU KURUVILA, PEZHUMMOOTTIL,**| ||**NEDUNGADAPPALLY P.O, KUNNANTHANAM,**| ||**KARUKACHAL, KOTTAYAM,**| ||**KERALA - 686 545.**| ||**BY ADVS.**| ||**SRI. V. MAHENDRANATH**| ||**SMT. P. T. SHEEJISH**| ## **RESPONDENTS:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY THE SECRETARY,**| ||**HOME DEPARTMENT, SECRETARIAT,**| ||**THIRUVANANTHAPURAM - 695 001.**| |**2**|**THE STATION HOUSE OFFICER,**| ||**KEEZHVAIPUR POLICE STATION, MALLAPPALLY**| ||**PATHANAMTHITTA,**| ||**KERALA - 689 587.**| |**3**|**THE DISTRICT POLICE CHIEF,**| ||**PATHANAMTHITTA DISTRICT,**| ||**OFFICE OF THE DISTRICT POLICE CHIEF,**| ||**THAZHEVETTIPRAM, PATHANAMTHITTA,**| ||**KERALA - 689 645.**| ||**SRI. SUNILNATH N. B, GP**| **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P(C).No.5485 OF 2021 2 ## **JUDGMENT** The petitioners have filed this writ petition under Article 226 of the Constitution of India seeking an appropriate writ order or direction to the 2[nd] respondent Station House Officer not to harass the petitioners or arrest them and the parents of the 1[st] petitioner in connection with the complaint of the 2[nd] petitioner's parents. In this writ petition it is alleged that parents of the 2[nd] petitioner are very affluent and politically influential and as such, the 2[nd] respondent Station House Officer would go to any extent to get the custody of the petitioners. Though serious allegations are leveled against the parents of the 2[nd] petitioner, they are not made parties to this writ petition. The only documents placed on record along with this writ petition is Exts.P1 and P2 Aadhaar cards and Exts.P3 and P4 Secondary School Leaving Certificates of petitioners. 2. On 03.03.2021, when this writ petition came up for consideration this Court passed the following order:- The relief sought for in this writ petition reads thus: “This Hon'ble Court may be pleased to issue appropriate writ, order or direction to the 2[nd] respondent not to harass the petitioners or arrest the petitioners and the 1[st] petitioner's parents in connection with the complaint of the 2nd ' petitioner s parents, or issue any other writ, order or direction W.P(C).No.5485 OF 2021 3 which this Hon'ble deems fit and proper, in the interest of justice.” (underline supplied) In the writ petition serious allegations are made against the parents of the 2[nd] petitioner. They are not made parties to this writ petition. Moreover, alleging police harassment, the petitioners have not approached the superior officers. 3. On 05.03.2021, when this writ petition came up for consideration, the learned counsel for the petitioners submitted that an application for impleadment is being filed. 4. On 05.03.2021, the petitioners have filed I.A No.1 of 2021, seeking an order to accept additional documents. The document placed on record as Ext.P5 is a copy of the complaint dated 03.03.2021 address to the District Police Chief, Pathanamthitta and Ext.P5(a) is a copy of its acknowledgment. The document marked as Ext.P6 is a copy of the complaint dated 03.03.2021 addressed to the Police Complaints Authority and Ext.P6(a) is a copy of the postal acknowledgment. 5. Heard the learned counsel for the petitioners and also the learned Government Pleader for the respondents. 6. In **Bharat Singh v. State of Haryana [(1988) 4 SCC 534]** the Apex Court held that, when a point which is ostensibly a W.P(C).No.5485 OF 2021 4 point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter-affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter-affidavit, as the case may be, the Court will not entertain the point. The Apex Court held further that there is a distinction between a pleading under the Code of Civil Procedure Code, 1908 and a writ petition or a counter-affidavit. While in a pleading, i.e., a plaint or a written statement, the facts and not evidence are required to be pleaded, in a writ petition or in the counter-affidavit not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it. 7. In **Narmada Bachao Andolan v. State of Madhya Pradesh [(2011) 7 SCC 639]** a Three-Judge Bench of the Apex Court held that, it is a settled proposition of law that a party has to plead its case and produce/adduce sufficient evidence to substantiate the averments made in the petition and in case the pleadings are not complete the Court is under no obligation to W.P(C).No.5485 OF 2021 5 entertain the pleas. Pleadings and particulars are required to enable the court to decide the rights of the parties in the trial. Thus, the pleadings are more to help the court in narrowing the controversy involved and to inform the parties concerned to the question(s) in issue, so that the parties may adduce appropriate evidence on the said issue. It is settled legal proposition that as a rule relief not founded on the pleadings should not be granted. Therefore, a decision of a case cannot be based on grounds outside the pleadings of the parties. The object and purpose of pleadings and issues is to ensure that the litigants come to trial with all issues clearly defined and to prevent cases being expanded or grounds being shifted during trial. If any factual or legal issue, despite having merit, has not been raised by the parties, the court should not decide the same as the opposite counsel does not have a fair opportunity to answer the line of reasoning adopted in that regard. Such a judgment may be violative of the principles of natural justice. 8. In view of the law laid down in the decisions referred to supra, in this writ petition filed under Article 226 of the Constitution of India, the petitioners have to plead and prove facts, which are W.P(C).No.5485 OF 2021 6 essential for maintaining the reliefs sought for, so that the respondents will have a fair opportunity to submit their counter affidavits raising appropriate legal and factual contentions. Therefore, the proper course to be adopted by the petitioners is either to amend the writ petition appropriately, or to file fresh writ petition with proper pleadings. 9. Rule 148 of the Rules of the High Court of Kerala, 1971 deals with addition of parties. As per Rule 148, all persons directly affected shall be made parties to the petition. Where such persons are numerous, one or more of them may with the permission of the court on application made of the purpose be impleaded on behalf of or for the benefit of all persons so affected; but notice of the Original Petition shall, on admission, be given to all such persons either by personal service or by public advertisement as the Court in each case may direct. 10. Though serious allegations are levelled against the parents of the 2[nd] petitioner, based on which the petitioners are seeking relief in this writ petition, they are not made parties to the writ petition. In view of the provisions under Rule 148 of the Rules of the High Court of Kerala, the parents of the 2[nd] petitioner are W.P(C).No.5485 OF 2021 7 necessary parties to this writ petition. In such circumstances, this writ petition is dismissed for the aforesaid reason; however without prejudice to the right of the petitioners to file a fresh writ petition with proper pleadings and proper parties in the party array. Sd/- **ANIL K. NARENDRAN, JUDGE** SPR W.P(C).No.5485 OF 2021 8 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE AADHAR CARD IN RESPECT OF THE 1ST PETITIONER.** **EXHIBIT P2 TRUE COPY OF THE AADHAR CARD IN RESPECT OF THE 2ND PETITIONER.** **EXHIBIT P3 TRUE COPY OF THE SECONDARY SCHOOL LEAVING CERTIFICATE IN RESPECT OF THE 1ST PETITIONER.** - **EXHIBIT P4 TRUE COPY OF THE SECONDARY SCHOOL LEAVING CERTIFICATE IN RESPECT OF THE 2ND PETITIONER.** - **EXHIBIT P5 TRUE COPY OF COMPLAINT DATED 03/03/2021 ADDRESSED TO THE DISTRICT POLICE CHIEF, PATHANAMTHITTA.** **EXHIBIT P5(a): TRUE COPY OF EMAIL ACKNOWLEDGEMENT OF EXT.P5. EXHIBIT P6: COMPLAINT DATED 03/03/2021 ADDRESSED TO THE POLICE COMPLAINTS AUTHORITY, KERALA. EXHIBIT P6(a): TRUE COPY OF POSTAL ACKNOWLEDGEMENT OF EXT.P6.** **RESPONDENT'S/S EXHIBITS: NIL.**