Lekshmi v. ShafeeK

# **`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 19[TH] DAY OF SEPTEMBER 2022 / 28TH BHADRA, 1944 ``` ``` OP (FC) NO. 504 OF 2021 ``` ``` AGAINST THE COMMON ORDER DATED 16.03.2021 IN I.A.NO.2059 ``` ``` & 2066 OF 2019 IN O.P.NO.380 OF 2019 OF THE FAMILY COURT, ``` ## **`CHAVARA`** ## **`PETITIONER/RESPONDENT/PETITIONER:`** ``` LEKSHMI, AGED 24 YEARS D/O. SUNDERESAN, ARINALLOOR P.O, THEVALAKARA, KARUNAGAPPALLY, KOLLAM DISTRICT-690 538 ``` ``` BY ADVS.K.SIJU REKHA.S ANJANA KANNATH ``` ## **`RESPONDENT/PETITIONER/RESPONDENT:`** ``` SHAFEEK, AGED 27 YEARS S/O. SALIM, KALLUMMOOTTIL, THEKKATHIL, PANMANA, PUTHENCHANTHA P.O, CHAVARA, KARUNAGAPPALLY, KOLLAM-690 501 ``` ``` BY ADV K.RAKESH ``` ``` THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 19.09.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` -2- O.P.(FC)No.504 of 2021 ## **JUDGMENT** ## Anil K. Narendran, J. The petitioner filed O.P.No.380 of 2019 before the Family Court, Chavara, against the respondent herein, seeking a decree of divorce under Section 27(l)(b) of the Special Marriage Act read with Section 7 of the Family Courts Act. In that original petition, the Family Court granted Ext.P2 _ex parte_ decree of divorce dated 29.07.2019. Therefore, the respondent-husband filed I.A.Nos.2059 and 2066 of 2019 seeking an order to set aside the ex-parte decree of divorce and also to condone the delay of 74 days in filing that application. By Ext.P5 common order dated 16.03.2021, the Family Court allowed those interlocutory applications on payment of cost. The said order reads thus; “Heard. Decree is for divorce. At the time of argument counter petitioner submitted that if petitions are allowed she may be compensated for the delay. I also find that petitioner is to be given an opportunity to contest the proceedings without causing prejudice to counter petitioner. In the result, this petition and IA 2059/19 are allowed on payment of cost of Rs.10,000/- to counter petitioner. For cost to 29.03.2021.” The document marked as Ext.P6 is a copy of the ‘B’ Diary with -3- O.P.(FC)No.504 of 2021 respect to I.A.No.2066 of 2019 and subsequent proceedings in O.P.No.380 of 2019. 2. 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 common order dated 16.03.2021 of the Family Court, Chavara in I.A.Nos.2059 and 2066 of 2019 in O.P.No.380 of 2019. 3. On 21.10.2021, when this original petition came up for admission, this Court issued notice before admission to the respondent by speed post. This Court granted an interim order staying all further proceedings in O.P.No.380 of 2019 on the file of the Family Court, Chavara. 4. The respondent has filed counter affidavit dated 25.07.2022 opposing the relief sought for in this original petition. 5. Heard the learned counsel for the petitioner and also the learned counsel for the respondent. 6. The issue that arises for consideration in this original petition is as to whether any interference is warranted on Ext.P5 common order dated 16.03.2021 of the Family -4- O.P.(FC)No.504 of 2021 Court, Chavara, whereby I.A.Nos.2059 and 2066 of 2019 stand allowed on payment of a cost of Rs.10,000/- 7. During the course of arguments, it is pointed out by the learned counsel for the petitioner-wife that the petitioner has already filed I.A.Nos.2 and 3 of 2021 seeking review of Ext.P5 common order dated 16.03.2021 in I.A.Nos.2059 and 2066 of 2019 in O.P.No.380 of 2019 of the Family Court, Chavara and those applications are pending consideration. 8. The learned counsel for the respondent-husband would point out that, as evidenced by Ext.P6 ‘B’ Diary, the respondent remitted Rs.10,000/- towards cost on 29.03.2021. The petitioner-wife has already withdrawn the said amount. 9. The learned counsel for the petitioner-wife would submit that she is yet to get any instructions on the aforesaid aspect. 10. Having considered the submissions made by the learned counsel on both sides, this Court finds that the extent of delay in filing the application to set aside the ex parte decree was only 74 days. By Ext.P5 common order, the Family Court condoned the delay on payment of a cost of Rs.10,000/. -5- O.P.(FC)No.504 of 2021 ## 11. 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. ## 12. 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 -6- O.P.(FC)No.504 of 2021 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. 13. 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. 14. 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 -7- O.P.(FC)No.504 of 2021 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. 15. 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 -8- O.P.(FC)No.504 of 2021 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. 16. Viewed in the light of the law laid down in the decisions referred to supra, no interference is warranted on Ext.P5 common order dated 16.03.2021, invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India. I.A.Nos.2 and 3 of 2021, filed by the petitioner seeking review of Ext.P5 common order, are now pending consideration before the Family Court, Chavara. The scope of review under Order XLVII Rule 1 of the Code of Civil Procedure, 1908 is very limited. A review petition cannot be an appeal in disguise. In such circumstances, this original petition is dismissed declining interference on Ext.P5 common order dated 16.03.2021 passed by the Family Court, Chavara; however, -9- O.P.(FC)No.504 of 2021 without prejudice to the right of the petitioner to prosecute I.A.Nos.2 and 3 of 2021, within the scope of review jurisdiction under Order XLVII Rule 1 of the Code. The Family Court shall consider those interlocutory applications and pass appropriate orders thereon, as expeditiously as possible, at any rate, within a period of one month from the date of production of a certified copy of this judgment. **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** **Sd/-** ## **P.G. AJITHKUMAR, JUDGE** AV/20/9 -10- O.P.(FC)No.504 of 2021 ## **`APPENDIX OF OP (FC) 504/2021`** ``` PETITIONER EXHIBITS ``` ``` Exhibit P1 ``` ``` THE COPY OF OP NO. 380/2019 FILED BEFORE THE FAMILY COURT, CHAVARA ON 9.5.2019. ``` ``` Exhibit P2 THE COPY OF JUDGMENT IN OP (SMA) NO. 380/2019 DATED 29.07.2019. ``` ``` Exhibit P3 ``` ``` THE COPY OF I.A. NO. 2066/2019 IN OP NO. 380/2019 FILED BEFORE THE FAMILY COURT, CHAVARA DATED 22.10.2019. ``` ``` Exhibit P4 ``` ``` THE COPY OF OBJECTION FILED BY THE PETITIONER TO I.A. NO. 2066/2019. ``` ``` Exhibit P5 THE COPY OF COMMON ORDER IN I.A. NOS. 2059/2019 AND 2066/2019 PASSED BY THE FAMILY COURT, CHAVARA 16.3.2021. ``` ``` Exhibit P6 ``` ``` THE COPY OF 'B' DIARY REGARDING I.A. NO. 2066/2019, AND SUBSEQUENT PROCEEDINGS IN O.P.NO. 380/2019. ```