Manjakkat Chandran v Kavupra Melethil Balakrishnan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 10TH DAY OF OCTOBER 2017/18TH ASWINA, 1939 OP(C).No. 2630 of 2017 (O) --------------------------O.S.47/2014 OF THE HON'BLE MUNSIFF-MAGISTRATE COURT, PONNANI** **PETITIONER(S): -------------** **MANJAKKAT CHANDRAN, S/O KRISHNAN, AGED 65 YEARS, PONNANI TALUK, MUTHUR AMSOM, MELMURI DESOM, PONNANI TALUK, MALAPPURAM DISTRICT.** **BY ADV. SMT.N.DEEPA** **RESPONDENT(S):** **--------------** **KAVUPRA MELETHIL BALAKRISHNAN, AGED 57 YEARS, S/O RAVUNNI KURUP, KAVUPRA MELETHIL, PONNANI TALUK, MUTHUR AMSOM, MELMURI DESOM, PIN 676 113.** **BY ADVS. DR.K.P.PRADEEP SMT.T.THASMI** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 10-10-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **EL** ## **OP(C).No. 2630 of 2017 (O)** ## **---------------------------** ## **APPENDIX** |**PETITIONER(S)'**|**EXHIBITS**| |---|---| |**-----------------------**|| |**EXHIBIT P1**|<br>**A TRUE COPY OF THE PLAINT IN O.S. NO.47/2014 ON THE**| ||**FILE OF THE HON'BLE MUNSIFF-MAGISTRATE COURT,**| ||**PONNANI**| |**EXHIBIT P2**|<br>**A TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE**| ||**PETITIONER HEREIN IN O.S. NO.47/2014 ON THE FILE OF**| ||**THE HON'BLE MUNSIFF-MAGISTRATE COURT, PONNANI DATED**| ||**26.5.2014**| |**EXHIBIT P3**|<br>**A TRUE COPY OF THE PETITION IN I.A. NO.267/2014 IN**| ||**O.S NO 47/2014 ON THE FILE OF THE HON'BLE MUNSIFF-**| ||**MAGISTRATE COURT, PONNANI DATED 14.2.2014**| |**EXHIBIT P4**|<br>**A TRUE COPY OF THE COMMISSION REPORT OF THE**| ||**ADVOCATE COMMISSIONER IN I.A NO 267/2014 IN O.S.**| ||**NO.47/2014 ON THE FILE OF THE HON'BLE MUNSIFF-**| ||**MAGISTRATE COURT, PONNANI**| |**EXHIBIT P5**|<br>**A TRUE COPY OF THE PETITION IN I.A NO 1422/2014 IN**| ||**O.S. NO.47/2014 ON THE FILE OF THE HON'BLE MUNSIFF-**| ||**MAGISTRATE COURT, PONNANI DTD 10/11/16**| |**EXHIBIT P6**|<br>**A TRUE COPY OF THE OBJECTION FILED BY THE**| ||**PETITIONER IN I.A. NO.1422/2014 IN O.S. NO.47/2014**| ||**ON THE FILE OF THE HON'BLE MUNSIFF-MAGISTRATE**| ||**COURT, PONNANI DATED 8.12.2014**| |**EXHIBIT P7**|<br>**A TRUE COPY OF THE ORDER DATED 12-02-2016 IN IA. NO**| ||**1422/2014 IN O.S. NO.47/2014 ON THE FILE OF THE**| ||**HON'BLE MUNSIFF-MAGISTRATE COURT, PONNANI**| |**EXHIBIT P8**|<br>**A TRUE COPY OF THE WORK MEMO SUBMITTED BY THE**| ||**PETITIONER TO THE ADVOCATE COMMISSIONER**| |**EXHIBIT P9**|<br>**A TRUE COPY OF THE MEMO SUBMITTED BY THE ADVOCATE**| ||**COMMISSIONER IN EXT. P1 SUIT DT. 02-02-2016**| |**EXHIBIT P10**|<br>**A TRUE COPY OF THE ORDER DT. 12-202-2016 IN IA NO.**| ||**1422/2014 IN O.S NO 47/2014 ON THE FILE OF THE**| ||**HON'BLE MUNSIFF-MAGISTRATE COURT, PONNANI**| |**EXHIBIT P8**|<br>**A TRUE COPY OF THE WORK MEMO SUBMITTED BY THE**| ||**PETITIONER TO THE ADVOCATE COMMISSIONER**| |**EXHIBIT P9**|**A TRUE COPY OF THE MEMO SUBMITTED BY THE ADVOCATE**| ||**COMMISSIONER IN EXT.P1 SUIT DT. 02-02-2016**| |**EXHIBIT P10**|<br>**A TRUE COPY OF THE ORDER DT. 12-02-2016 IN I.A. NO.**| ||**1422/2014 IN O.S. NO.47/2014 ON THE FILE OF THE**| ||**HON'BLE MUNSIFF-MAGISTRATE COURT, PONNANI**| |**EXHIBIT P11**|<br>**A TRUE COPY OF THE ORDER DT. 04-01-2017 IN O.P(C)**| ||**NO.2702/2016 ON THE FILE OF THIS HON'BLE COURT**| ## **OP(C).No. 2630 of 2017 (O)** ## **--------------------------** |**EXHIBIT P12**|<br>**A TRUE COPY OF THE PETITION, I.A NO 404/2017 IN**| |---|---| ||**O.S. NO.47/2014 ON THE FILE OF THE HON'BLE**| ||**MUNSIFF-MAGISTRATE COURT, PONNANI**| |**EXHIBIT P13**|<br>**A TRUE COPY OF THE PETITION, I.A. NO.687/2017 IN**| ||**O.S NO.47/2014 ON THE FILE OF THE HON'BLE MUNSIFF-**| ||**MAGISTRATE COURT, PONNANI DATED 4.7.2017**| |**EXHIBIT P14**|<br>**A TRUE COPY OF THE OBJECTION FILED BY THE**| ||**RESPONDENT HEREIN TO I.A NO.404/2017 IN O.S.**| ||**NO.47/2014 ON THE FILE OF THE HON'BLE MUNSIFF-**| ||**MAGISTRATE COURT, PONNANI DATED 4.7.2017**| |**EXHIBIT P15**|<br>**A TRUE COPY OF THE OBJECTION FILED BY THE**| ||**RESPONDENT HEREIN TO I.A. NO.687/2017 IN O.S.**| ||**NO.47/2014 ON THE FILE OF THE HON'BLE MUNSIFF-**| ||**MAGISTRATE COURT, PONNANI**| |**EXHIBIT P16**|**A TRUE COPY OF THE ORDER DT.29-07-2017 IN I.A. NO.**| ||**404/2017 IN O.S. NO.47/2014 ON THE FILE OF THE**| ||**HON'BLE MUNSIFF-MAGISTRATE COURT, PONNANI**| |**EXHIBIT P17**|<br>**A TRUE COPY OF THE ORDER DT.29-07-2017 IN I.A. NO.**| ||**687/2017 IN O.S. NO.47/2014 ON THE FILE OF THE**| ||**HON'BLE MUNSIFF-MAGISTRATE COURT, PONNANI**| **RESPONDENT(S)' EXHIBITS -----------------------** ## **NIL** **TRUE COPY** **P.S. TO JUDGE** **EL** ## **ANIL K. NARENDRAN, J.** ## **----------------------------------------------O.P(C) No.2630 of 2017 -----------------------------------------------** Dated this the 10[th] day of October, 2017 ## **J U D G M E N T** The petitioner, who is the defendant in O.S.No.47 of 2014 on the file of the Munsiff-Magistrate Court, Ponnani is before this Court in this Original Petition filed under Article 227 of the Constitution of India, challenging Exts.P16 and P17 orders of the said court dated 29.7.2017 in I.A.No.404 of 2017 and I.A.No.687 of 2017. 2. On 25.8.2017 this Court admitted the Original Petition on file and issued notice by speed post to the respondent. This Court has also granted an interim stay of all further proceedings in O.S.No.47 of 2014 on the file of the Munsiff-Magistrate Court, Ponnani, for a period of one month. The said interim order was extended for a further period of three months on 20.9.2017. 3. Heard the learned counsel for the petitioner/defendant and also the learned counsel for the respondent/plaintiff. 4. The challenge made in this Original Petition is against Exts.P16 and P17 orders passed by the court below dated 29.7.2017 in I.A.Nos.404 of 2017 and 687 of 2017 in O.S.No.47 ## **O.P(C) No.2630 of 2017** **2** of 2014. I.A.No.404 of 2017 is one filed under Order XLVII Rule 1 of the Code of Civil Procedure, 1908 seeking an order to review the order dated 16.12.2014 of the said court in I.A.No.1422 of 2014, whereby the Advocate Commissioner was directed to measure the property of the plaintiff and the defendant as per their title deeds. The Advocate Commissioner submitted Ext.P9 memo seeking directions from the court, based on which, the court below passed Ext.P10 order dated 12.2.2016 in I.A.No.1422 of 2014, whereby the Advocate Commissioner was directed to measure only the property of the plaintiff as per title deed No.591 of 2002 of the Sub Registrar Office, Edappal with the assistance of the surveyor. Paragraph 4 of Ext.P10 order reads thus; “4. In this circumstances, being the 1[st] step, the commissioner is directed to measure the property of the petitioner only as per the title deed No.591/2002 of Sub Registry, Edappal with the assistance of surveyor. Because, the petitioner/plaintiff's prayer is that he has till (sic: title) in respect of the plaint schedule property as appear (sic: as per) sale deed mentioned above and he sought injunction in respect of the plaint schedule property only. If the commissioner finds that the area of the paint schedule property is in conformity with the said sale deed, injunction could be made absolute unless it overlaps the properties of the respondent/defendant and in the event it overlaps the **O.P(C) No.2630 of 2017** **3** boundary, the commissioner need measure the property of the respondent.” 5. Ext.P10 order dated 12.2.2016 in I.A.No.1422 of 2014 was under challenge before this Court in O.P.(C)No.2702 of 2016, contending that the court below ought not to have passed such an order without reviewing its earlier order dated 16.12.2014 in I.A.No.1422 of 2014. The said Original Petition was disposed of by Ext.P11 judgment dated 4.1.2017, whereby this Court set aside the order of the court below dated 12.2.2016 in I.A.No.1422 of 2014 based on the submission made by the learned counsel for the petitioner/plaintiff that, the plaintiff will move the court below with a petition to direct the defendant to produce documents. In Ext.P11 judgment, this Court has also recorded the submission that, the defendant proposes to file a review petition to review the order dated 16.12.2014 in I.A.No.1422 of 2014. Paragraph 3 of Ext.P11 judgment dated 4.1.2017 reads thus; “3. In such circumstances, this court is of the view that Ext.P13 is liable to be set aside. Accordingly, it is set aside. It is now submitted by the learned counsel for the petitioner that they will move the court below with a petition to direct the defendants to produce documents. The learned counsel for the **O.P(C) No.2630 of 2017** **4** respondent submit that he is proposing to file a review petition to review Ext.P9 order.” 6. Seeking review of the order dated 16.12.2014 in I.A.No.1422 of 2014, the petitioner/defendant filed I.A.No.404 of 2017 in O.S.No.47 of 2014, under Order XLVII, Rule 1 of the Code. The defendant has also filed I.A.No.687 of 2017 in O.S.No.47 of 2014, under Order XXXIX, Rule 1 of the Code, seeking an order directing the plaintiff to maintain status quo as on 23.5.2014, as reported by the advocate commissioner in his report and plan. The respondent/plaintiff filed counter to both interlocutory applications. After considering the rival contentions, the court below dismissed both interlocutory applications by Exts.P16 and P17 orders. 7. As noticed by the court below in Ext.P16 order, the petitioner/defendant filed I.A.No.404 of 2017 seeking review of the order dated 16.12.2014 in I.A.No.1422 of 2014 in O.S.No.47 of 2014, as if this Court in Ext.P11 judgment has permitted him to file such petition seeking review of that order. In the absence of any mistake or error apparent on record pointed out by the defendant, the court below found no grounds to review its order dated 16.12.2014 in I.A.No.1422 of 2014, which is a detailed **O.P(C) No.2630 of 2017** **5** order whereby the said interlocutory application was allowed after being satisfied with the averments in the affidavit accompanying to I.A.No.1422 of 2014. The court below has also found that the defendant filed I.A.No.404 of 2017, under Order XLVII, Rule 1 of the Code, much after the period of limitation of 30 days prescribed under Article 124 of the Limitation Act, 1963 and as such, that application is hopelessly barred. 8. In **Parsion Devi and others v. Sumitri Devi and others (1997 (8) SCC 715)** the Apex Court held that, there is a clear distinction between an erroneous decision and an error apparent on the face of the record. While the first can be corrected by the higher forum, the latter can be corrected by exercise of the review jurisdiction. Later, in **Lily Thomas v.** **Union of India (2000 (6) SCC 224)** the Apex Court held that, the power of review can be exercised for correction of a mistake but not to substitute a view. The review cannot be treated like an appeal in disguise. The mere possibility of two views on the subject is not a ground for review. 9. In the instant case, in Ext.P11 judgment, this Court has only recorded the submission made on behalf of the **6** ## **O.P(C) No.2630 of 2017** defendant that he proposes to file a review petition to review the order dated 16.12.2014 in I.A.No.1422 of 2014. Therefore, the petitioner/defendant cannot contend that in Ext.P11 judgment this Court has permitted him to file review petition seeking review of the order dated 16.12.2014. The court below, whilst exercising the power of review, cannot be oblivious of the provisions contained in Order XLVII Rule 1 of the Code and that, the limits within which it can exercise the power of review has been well settled in a catena of decisions by the Apex Court and also by this Court. In that view of the matter, the reasoning given by the court below in Ext.P16 order for rejecting I.A.No.404 of 2017, which was also hopelessly barred by limitation, is neither perverse or patently illegal, warranting an interference of this Court, in exercise of the supervisory jurisdiction under Article 227 of the Constitution of India. 10. The petitioner/defendant filed I.A.No.687 of 2017 in O.S.No.47 of 2014, under Order XXXIX, Rule 1 of the Code, seeking an order directing the respondent/plaintiff to maintain status quo as on 23.5.2014, as reported by the advocate commissioner in his report and plan. The relief sought for in the **O.P(C) No.2630 of 2017** **7** said application was opposed by the respondent/plaintiff by filing Ext.P15 counter. The suit is one seeking a permanent prohibitory injunction restraining the defendant from trespassing into the existing eastern boundary of the plaint schedule property and to prevent him from cutting and removing the trees standing thereon. The advocate commissioner, who inspected the plaint schedule property and also the property of the defendant, has submitted a report on 23.5.2014. According to the defendant, recently the plaintiff trespassed into the defendant's property and excavated earth therefrom with a JCB. Therefore, in I.A.No.687 of 2017, the defendant is seeking an order directing the plaintiff to maintain status quo as on 23.5.2014, as reported by the advocate commissioner in his report and plan. 11. As discernible from Ext.P17 order, no materials were made available before the court below to ascertain the present position of the property. Going by the averments I.A.No.687 of 2017 the plaintiff has already removed earth from the property and altered the position. Therefore, the court below found that, an order to maintain status quo existed as on 23.5.2014, as reported by the advocate commissioner in his report and plan, **O.P(C) No.2630 of 2017** **8** cannot be granted without ascertaining the present condition of the boundary. 12. 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. 13. 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 **O.P(C) No.2630 of 2017 9** 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. 14. Viewed in the light of the law laid down in the decisions referred to above, the reasoning of the court below in Exts.P16 and P17 orders cannot be termed as palpably perverse or patently unreasonable or in direct conflict with settled principle of law, warranting an interference in exercise of the supervisory jurisdiction of this Court under Article 227 of the Constitution of India. In the result, this Original Petition fails and the same is accordingly dismissed. No order as to costs. ## Sd/- **ANIL K. NARENDRAN JUDGE** //True Copy// P.A to Judge ab