Lilly and Shailaja v. Joshy M.P.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **MONDAY, THE 20TH DAY OF NOVEMBER 2017/29TH KARTHIKA, 1939** ## **OP(C).No. 3325 of 2017 (O)** **--------------------------IA NO. 1519/2017 IN OS NO.49/2011 OF MUNSIFF'S COURT, OTTAPALAM ----------------** **PETITIONERS :** **1. LILLY AGED 59 YEARS, D/O.LATE CHARLI, MISSION COMPOUND , KOONATHARA AMSOM, PANAYUR DESOM, OTTAPALAM TALUK, PALAKKAD DISTRICT.** **2. SHAILAJA, AGED 56 YEARS,D/O.CHARLI, MISSION COMPOUND , KOONATHARA AMSOM, PANAYUR DESOM, OTTAPALAM TALUK, PALAKKAD DISTRICT** **BY ADV. SRI.P.JAYARAM** **RESPONDENT:** **-------------------------** **JOSHY M.P., AGED 41 YEARS, S/O. PRABHAKARAN, MUTHUKATTIL, THIRUMITTAKKODE PO , 679533, THIRUMITTAKKODE AMSOM DESOM, PALAKKAD DISTRICT.** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 20-11-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **bp** ## **OP(C).No. 3325 of 2017 (O) -------------------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS -------------------------------------** **EXHIBIT P1: TRUE COPY OF THE PLAINT IN OS NO 49/2011, MUNSIFF COURT, OTTAPALAM** - **EXHIBIT P2: TRUE COPY OF THE WRITTEN STATEMENT IN OS NO 49/2011, MUNSIFF COURT,OTTAPALAM** - **EXHIBIT P3: TRUE COPY OF THE REPORT AND SUBMITTED BY THE COMMISSIONER IN IA 213/2011 IN OS NO.49/2011 , MUNSIFF COURT, OTTAPALAM.** - **EXHIBIT P4: TRUE COPY OF THE OBJECTION SUBMITTED BY THE PETITIONERS/DEFENDANTS AGAINST EXT P3 REPORT AND PLAN** - **EXHIBIT P5: TRUE COPY OF THE ORDER DTD 6/7/2012 IN IA NO.1331/2012 IN OS NO 49/2011 MUNSIFF COURT, OTTAPALAM** - **EXHIBIT P6: TRUE COPY OF THE AFFIDAVIT IN IA NO 1519/2016 IN OS NO 49/2011, MUNSIFF COURT, OTTAPALAM FILED BY THE PETITIONERS TO REMIT EXHIBIT P3 REPORT AND PLAN** - **EXHIBIT P7: TRUE COPY OF THE COUNTER STATEMENT FILED BY THE RESPONDENT IN IA O 1519/2016 IN OS NO.49/2011, MUNSIFF COURT, OTTAPALAM** - **EXHIBIT P8: TRUE COPY OF THE ORDER DTD 19/9/2017 IN IA NO 1519/2016 IN OS NO 49/2011 , MUNSIFF COURT, OTTAPALAM.** **RESPONDENT(S)' EXHIBITS : NIL.** **//TRUE COPY//** ## **P.A. TO JUDGE** **bp** ## **ANIL K.NARENDRAN, J.** **-----------------------------------------------** O.P.(C)No.3325 of 2017 **-----------------------------------------------** Dated this the 20[th] day of November, 2017 ## **J U D G M E N T** The petitioners, who are the defendants in O.S.No.49/2011 on the file of the Munsiff's Court, Ottappalam, has filed this original petition under Article 227 of the Constitution of India, seeking an order to set aside Exts.P5 and P8 orders of the said court. 2. Heard the learned counsel for the petitioners/ defendants. 3. O.S.No.49/2011 is one filed by the respondent/plaintiff seeking a decree for mandatory injunction and also for prohibitory injunction. The plaintiff is claiming removal of an obstruction on plaint B schedule way. It is also claimed that the defendants be prohibited from trespassing into plaint B schedule way or from causing hindrance to the enjoyment of plaint B schedule way. 4. During the pendency of the suit, the petitioners moved I.A.No.1331/2012, seeking an order to remit the report and rough O.P.(C)No.3325 of 2017 :-2-: sketch submitted by the Advocate Commissioner and to obtain a fresh report and sketch. The said interlocutory application ended in dismissal by Ext.P5 order dated 6.7.2012. Paragraphs 5 and 6 of the said order read thus ; “5. In I.A.213/11 a commissioner was appointed for local inspection. The commissioner inspected the plaint schedule properties on 25-1-2011 and filed a commission report and rough sketch on 16-2-2011. The defendants now seek to remit back the above commission report and rough sketch on the ground that the commission report is not correct. 6. The suit is listed for trial today (6-7-12). The defendants filed the present petition only on 30-6-12. The commissioner had filed the commission report and rough sketch as early as on 16-2-2011. The defendants filed the present petition at a highly belated stage. If the defendants had any genuine objections to the commission report definitely they would have filed objection to the commission report or petition to remit the commission report immediately after filing the commission report. The defendants did not file any objection to the commission report even when the case was posted for steps. The present petition is filed without any bonafides but only with an intention to delay the disposal of the suit, which is listed for trial today. In the above circumstances the prayer in the present petition is not allowable.” 5. Subsequently, O.S.No.49/2011 was dismissed for default. During the course of arguments, it is admitted by the learned counsel for the petitioners that the said suit was later restored to file in the year 2015. Instead of challenging Ext.P5 order, O.P.(C)No.3325 of 2017 :-3-: subsequent to the restoration of the suit, the petitioner filed I.A.No.1519/2017, another application under Order XXVI Rule 9 of the Code of Civil Procedure, 1908, seeking the very same relief sought for in I.A.No.1331/2012. The said interlocutory application now stands dismissed by Ext.P8 order dated 19.9.2017 of the said court. Paragraph 6 of the said order reads thus ; “6. The suit is for mandatory injunction directing the defendants from removing the pole erected on the plaint 'B' schedule property and to restore the plaint 'B' schedule to previous position and for permanent prohibitory injunction restraining the defendants from trespassing upon the plaint 'B' schedule property or from causing obstruction or from altering the nature of plaint 'B' schedule property or from causing any obstruction or disturbance in using the plaint 'B' schedule way by the plaintiff. The issue that is for consideration is whether the plaint 'B' schedule way is in existence and whether the defendants has caused obstruction in plaint 'B' schedule way by eastern poles. The contention of the petitioner is that the commissioner has not noted that the plaint 'A' schedule Item No.1, 2 and 3 are lying in three different level and that plaint 'A' schedule Item No.3 and plaint 'B' schedule are also lying in different levels. The petitioner contends that the reporting of all those facts is highly necessary for effective adjudication of case. Further the commissioner has inspected the property without notice to the petitioner. The respondents contended that the petition is highly belated and a similar petition filed earlier as I.A.1331/12 was dismissed by this court. Grounds put forward in the petition are not sufficient to allow the application. It is pertinent to note that when the matter was listed earlier the petitioner had come up with similar application with the same O.P.(C)No.3325 of 2017 :-4-: contentions as I.A.1331/12 and this court had dismissed the application. Thereafter the suit was decreed exparte. The petitioner after setting aside the exparte decree had now come up with this application as stated earlier. The only issue in this case is the existence of plaint 'B' schedule way and of causing obstruction by the defendants on the plaint 'B' schedule way by placing poles. The grounds stated in the petition are not necessary for the effective adjudication of case. I am of the opinion that the petition is without merits. Moreover the petition is highly belated. The commission report is seen filed as early as on 16/2/2011. I find no reason that warrants the remission of commission report and plan. Hence I am of opinion that the petitioner is not entitled for the relief sought for. Hence the point is answered accordingly.” 6. Now, the petitioners are before this Court in this original petition, seeking an order to challenge Exts.P5 and P8 orders, invoking the supervisory jurisdiction under Article 227 of the Constitution of India. 7. By Ext.P5 order, the court below rejected the belated request made in I.A.No.1331/2012, which was filed only on 30.6.2012, to remit back the report and rough sketch submitted by the Advocate Commissioner dated 16.2.2011. Such an application was filed when the suit was listed for trial on 6.7.2012. The fact that Ext.P5 order of the court below in I.A.No.1331/12 stands unchallenged till the filing of this original O.P.(C)No.3325 of 2017 :-5-: petition, is not in dispute. Ext.P5 order of the court below is one dated 6.7.2012. Though the suit was dismissed for default, subsequently it was restored to file in the year 2015. 8. In **Bithika Mazumdar v. Sagar Pal (2017 (2) KHC 153)** , the Apex Court held that, though no limitation is prescribed for filing an application under Article 227 of the Constitution of India, such an application has to be filed without reasonable delay and if there is delay that should be duly and satisfactorily explained. Paragraph 4 of the said judgment reads thus: “4. It is the admitted position in law that no limitation is prescribed for filing application under Article 227 of the Constitution. Of course, the petitioner who files such a petition is supposed to file the same without unreasonable delay and if there is a delay that should be duly and satisfactorily explained. In the facts of the present case, we find that the High Court has dismissed the said petition by observing that though there is no statutory period of limitation prescribed, such a petition should be filed within a period of limitation as prescribed for applications under Section 115 of the Code of Civil Procedure. This approach of the High Court cannot be countenanced. As mentioned above, in the absence of any limitation period, if the petition is filed with some delay but at the same time, the petitioner gives satisfactory explanation thereof, the petition should be entertained on merits.” 9. In view of the law laid down by the Apex Court in the O.P.(C)No.3325 of 2017 :-6-: decision referred to supra, in the absence of any explanation whatsoever offered by the petitioners for the inordinate delay in approaching this Court, the challenge made against Ext.P5 order can only be rejected as highly belated. 10. Now what remains to be considered in this original petition is as to the challenge made against Ext.P8 order. A reading of Ext.P8 order would show that the court below dismissed I.A.No.1519/2017 mainly for the reason that the very same relief sought for in I.A.No.1331/2012, stands rejected by Ext.P5 order, which stands unchallenged. The court below has also noticed that the grounds raised in I.A.No.1519/2017 to remit the report and rough sketch of the Advocate Commissioner are not necessary for the effective adjudication of the case and that the application is highly belated. ## 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 ## O.P.(C)No.3325 of 2017 :-7-: 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 **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 principle of law. 13. Viewed in the light of the law laid down in the decisions ## O.P.(C)No.3325 of 2017 :-8-: referred to supra, the reasoning of the court below in rejecting Ext.P8 application cannot be said to be perverse or patently illegal, warranting an interference of this Court under Article 227 of the Constitution of India. 14. Moreover, in **Abdul Khader v. Surburban Chit Funds (P) Ltd. (2006 (1) KLT 749)** this Court held that, delay in the judicial process will only be further aggravated if this Court by invoking the powers under Article 227 of the Constitution of India were to show undeserved indulgence to parties to a civil suit. An incorrect impression has gained ground that any and every error, inadequacy and contumacious lethargy in the conduct of civil cases can be corrected at later stages by approaching the superior courts. Law is for the alert. Justice can be claimed only by those who pursue the avenues open to them with diligence. 15. The learned counsel for the petitioners would submit that the report submitted by the Advocate Commissioner in I.A.No.213/2011 is already on record and if, during trial, the court below is dissatisfied with the said report, the petitioner may be permitted to file application to remit the report to the O.P.(C)No.3325 of 2017 :-9-: Advocate Commissioner. This Court need not express any opinion on the said submission made by the learned counsel for the petitioners, since, going by the provisions under Order XXVI, Rule 10(3) of the Code, the dissatisfaction of the Court, irrespective of whether any objection is filed or not to the Commission report, is the relevant consideration for remitting the report to the Advocate Commissioner. In the result, this original petition fails and the same is accordingly dismissed. Sd/- **ANIL K.NARENDRAN JUDGE** ami/22.11.17 //True copy// P.A.to Judge