Nazeer P. v. Jameel Sooraj and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY, THE 11TH DAY OF OCTOBER 2017/19TH ASWINA, 1939** **OP(C).No. 2893 of 2017 (O) --------------------------OS.155/2013 BEFORE THE MUNSIFF COURT, PARAPPANANGADI** **PETITIONER(S): -------------** **NAZEER P., S/O. MOHAMMEDKUTTY HAJI, PULLISSERI HOUSE, KANNAMANGALAM AMSOM DESOM, TIRURANGADI TALUK, MALAPPURAM DISTRICT.** **BY ADVS.SRI.JAMSHEED HAFIZ SMT.T.S.SREEKUTTY** ## **RESPONDENT(S):** **--------------** ## **1. JAMEEL SOORAJ,** **S/O. KUNHALAN, POOZHITHURA HOUSE, KLARI AMSOM DESOM, TIRURANGADI TALUK, MALAPPURAM 676 501.** **2. SHAMSUDHEEN, S/O. KUNHALAN, POOZHITHURA HOUSE, KLARI AMSOM DESOM, TIRURANGADI TALUK, MALAPPURAM 676 501.** **3. RAMLA LATHEEF, D/O KUNHALAN, POOZHITHURA HOUSE, KLARI AMSOM DESOM, TIRURANGADI TALUK, MALAPPURAM 676 501.** **4. HASEENA BACKER, D/O. KUNHALAN, POOZHITHURA HOUSE, KLARI AMSOM DESOM, TIRURANGADI TALUK, MALAPPURAM 676 501.** **R1-R4 BY ADVS. SRI.K.RAMACHANDRAN SRI.S.SREEDEV** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 11-10-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **EL** ## **OP(C).No. 2893 of 2017 (O)** ## **---------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS** **----------------------EXHIBIT P1 A TRUE COPY OF THE PLAINT IN O.S.155/2013 BEFORE THE MUNSIFF COURT PARAPPANANGADI DATED 10.06.2013. EXHIBIT P2 A TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER HEREIN DATED 05.12.2013. EXHIBIT P3 A TRUE COPY OF THE REPORT OF THE COMMISSIONER DATED 11.04.2017.** **EXHIBIT P4 A TRUE COPY OF THE REPORT OF THE EXPERT DATED NIL EXHIBIT P5 A TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER HEREIN DATED 22. 05.2017. EXHIBIT P6 A TRUE COPY OF THE I.A.893/2017 IN O.S. 155/2013 BEFORE THE MUNSIFF COURT PARAPPANANGADI DATED 13.06.2017. EXHIBIT P7 A TRUE COPY OF THE COUNTER TO THE APPLICATION I.A. 893/2017 IN O.S.155/2013 BEFORE THE MUNSIFF COURT PARAPPANANGADI DATED 16.06.2017.** **EXHIBIT P8 A TRUE COPY OF THE ORDER DATED 19.06.2017 IN I.A. 893/2017 IN O.S.155/2013 BEFORE THE MUNSIFF COURT PARAPPANANGADI. EXHIBIT P9 A TRUE COPY OF THE ORDER DATED 31.07.2017 IN O.P. (C) 2053/2017 BEFORE THIS HONOURABLE COURT. EXHIBIT P10 A TRUE COPY OF THE I.A.1340/2017 IN O.S. 155/2013 BEFORE THE MUNSIFF COURT PARAPPANANGADI DATED 18/08/2017 EXHIBIT P11 A TRUE COPY OF THE COUNTER TO THE I.A.1340/2017 IN O.S.155/2013 BEFORE THE MUNSIFF COURT PARAPPANANGADI DATED 25.08.2017. EXHIBIT P12 A TRUE COPY OF THE DEPOSITION OF THE COMMISSIONER DATED 14.08.2017. EXHIBIT P13 A TRUE COPY OF THE DEPOSITION OF THE EXPERT DATED 14.08.2017 EXHIBIT P14 A TRUE COPY OF THE ORDER IN I.A 1340/2017 IN O.S 155/2013 BEFORE THE MUNSIFF COURT, PARAPPANANGADY. EXHIBIT P15 A TRUE COPY OF THE APPLICATION I.A.1475/2017 DATED 18.09.2017. EXHIBIT P16 A TRUE COPY OF THE COUNTER FILED BY THE RESPONDENTS DATED 22.09.2017.** **OP(C).No. 2893 of 2017 (O)** ## **--------------------------** **EXHIBIT P17 A TRUE COPY OF THE ORDER IN I.A.1475/2017 DATED IN O.S. 155/2013 DATED 25.09.2017.** **RESPONDENT(S)' EXHIBITS** **-----------------------** **NIL** **TRUE COPY** **P.S. TO JUDGE** **EL** ## **ANIL K.NARENDRAN, J.** =================== ## **O.P(C) No.2893 of 2017** ======================= Dated this the 11[th] day of October, 2017 ## **JUDGMENT** The petitioner who is the defendant in O.S No.155/2013 on the file of the Munsiff's Court, Parappanangadi, is before this court in this original petition filed under Article 227 of the Constitution of India seeking an order to set aside Ext.P14 order dated 25.09.2017 in I.A No.1340/2017 and Ext.P17 order dated 25.09.2017 in I.A No.1475/2017 in that suit. The said suit is one filed by the respondents/plaintiffs seeking a decree for eviction of the petitioner/defendant from the plaint schedule building. 2. On 28.09.2017, this Court issued urgent notice on admission through special messenger to respondents 1 to 4. This Court has also granted an interim stay of all further proceedings in O.S No.155/2013 for a period of one week, which order was extended by one week on 04.10.2017. 3. Heard the learned counsel for the petitioner/ defendant and also the learned counsel for the respondents/ plaintiffs. 4. The sole issue that arises for consideration in this original petition is as to whether Exts.P14 and P17 orders O.P(C) No.2893 of 2017 2 warrant interference, invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India. 5. 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. 6. 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 O.P(C) No.2893 of 2017 3 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. 7. Ext.P14 order is one passed by the court below in I.A No.1340/2017, an application made by the petitioner under Order XXVI Rules 9 and 10 of Code of Civil Procedure, 1908 seeking an order to set aside Ext.P3 report of the Advocate Commissioner dated 11.04.2017 and Ext.P4 report dated 'nil' of the Expert, who assisted the Advocate Commissioner. To those reports, the petitioner submitted Ext.P5 objection dated 22.05.2017 contending, inter alia, that the value assessed by the Expert is very low and that, the Advocate Commissioner has not reported any articles and materials placed in the plaint O.P(C) No.2893 of 2017 4 schedule shop room and in the godown alleged to have been constructed by him. The petitioner filed I.A.No.893/2017 for issuance of a fresh commission, which ended in dismissal by Ext.P8 order dated 19.06.2017. The said order was under challenge before this Court in O.P.(C) No.2053/2017, which was disposed of by Ext.P9 judgment dated 31.07.2017. The operative portion of the said judgment reads thus: “Considering the facts and circumstances, I am of the view that the suit can be tried on an early date and in the course of trial, if the petitioner is able to establish that Exts.P3 and P4 are factually incorrect and further, if the court finds that Exts.P3 and P4 are insufficient to properly adjudicate the matter, the court below shall allow the parties or take steps by itself to remit/set aside the plan and report and gather facts sufficient to adjudicate the case properly.” 8. In the course of trial, the Advocate Commissioner and the Expert were examined as DWs.1 and 2 respectively and their depositions are produced along with this original petition as Exts.P12 and P13 respectively. Thereafter, the petitioner filed I.A No.1340/2017, under Order XXVI Rules 9 and 10 of Code, seeking an order to set aside Exts.P3 and P4 O.P(C) No.2893 of 2017 5 reports and to appoint another experienced commissioner to file a detailed report and plan. In the said interlocutory application, the petitioner contended that Exts.P3 and P4 reports were not filed in accordance with the orders of the court below. According to the petitioner, the cost of the work is not separately shown in the report and that the value assessed by the Expert is incorrect. The respondents filed Ext.P11 objection, opposing the relief sought for in I.A No.1340/2017. Thereafter, the petitioner filed I.A No.1475/2017, an application to send the document marked as Ext.P5 for expert opinion, since PW1 denied the execution of the said document. The respondents filed Ext.P16 objection, opposing the relief sought for in I.A No.1340/2017. After considering the rival contentions, the court below dismissed I.A Nos.1340/2017 and 1475/2017 by Exts.P14 and P17 orders, which are under challenge in this original petition. 9. Order XXVI, Rule 10 deals with procedure of commissioner. Sub-rule (1) of Rule 10 provides that, the commissioner, after such local inspection as he deems O.P(C) No.2893 of 2017 6 necessary and after reducing to writing the evidence taken by him, shall return such evidence, together with his report in writing signed by him, to the Court. Sub-rule (2) of Rule 10 provides further that, the report of the commissioner and the evidence taken by him (but not the evidence without the report) shall be evidence in the suit and shall form part of the record; but the Court or, with the permission of the Court, any of the parties to the suit may examine the commissioner personally in open Court touching any of the matters referred to him or mentioned in his report, or as to his report, or as to the manner in which he has made the investigation. Going by sub-rule (3) of Rule 10, where the Court is for any reason dissatisfied with the proceedings of the commissioner, it may direct such further inquiry to be made as it shall think fit. 10. In the instant case, by Ext.P14 order, the court below dismissed I.A No.1340/2017 filed by the petitioner seeking an order to set aside Exts.P3 and P4 reports and to appoint another experienced commissioner to file a detailed report and plan, on a finding that the materials in the said O.P(C) No.2893 of 2017 7 reports are sufficient for the fair disposal of the case. As discernible from Ext.P14 order, before the court below the petitioner contended that the valuation shown is too low, the cost of construction is not separately stated, etc. The said contentions are virtually reiteration of objections already raised by him in I.A.No.893/2017 filed for issuance of a fresh commission. 11. The aforesaid interlocutory application ended in dismissal by Ext.P8 order dated 19.06.2017, which was under challenge before this Court in O.P.(C) No.2053/2017. While disposing of the said original petition by Ext.P9 judgment, this Court observed that, in the course of trial, if the petitioner is able to establish that Exts.P3 and P4 are factually incorrect and further, if the court finds that Exts.P3 and P4 are insufficient to properly adjudicate the matter, the court below shall allow the parties or take steps by itself to remit/set aside the plan and report and gather facts sufficient to adjudicate the case properly. 12. O.S No.155/2013 filed by the respondents/plaintiffs O.P(C) No.2893 of 2017 8 is one seeking a decree for eviction of the petitioner/ defendant from the petition schedule building. Admittedly, the plaint schedule building is not situated in an area where the provisions of Kerala Buildings (Lease and Rent Control) Act, 1965 are made applicable. In the written statement, the petitioner/defendant would contend that he had constructed a godown on the rear side of the plaint schedule building, as permitted by the respondents/plaintiffs. It is a license coupled with interest and as such, he is entitled for protection under Section 60(b) of the Easements Act. The petitioner/defendant would contend further that, if the respondents/plaintiffs have a case that it is also a lease, the defendant as the lessee is entitled to value of improvements. 13. The entitlement of the petitioner/defendant for value of improvements alleged to have been made can only be in the terms of the provisions, if any, contained in the agreement executed between the parties. If it is ultimately found that the petitioner/defendant is entitled for value of improvements, his interest can be protected by making O.P(C) No.2893 of 2017 9 appropriate provisions in the decree. In Ext.P14 order, after considering the contentions raised by the petitioner, the court below found that the materials in the reports are sufficient for the fair disposal of the case and accordingly dismissed I.A No.1340/2017. The reasoning of the court below in Ext.P14 order cannot be termed either perverse or patently illegal warranting interference by this Court. 14. I.A No.1475/2017 is an application filed by the petitioner/defendant to send the document marked as Ext.P5 for expert opinion, since PW1 denied the execution of the said document. The said application ended in dismissal by Ext.P17 order dated 25.09.2017. The suit is of the year 2013. Admittedly, the said document, which was produced before the court below only on 18.08.2017 along with I.A.No.1320/2017, was in the possession the petitioner/defendant from the very beginning of the suit and the said document has also been referred to in Ext.P2 written statement filed in the year 2013. However, he has chosen to produce the said document before the court below only at the fag-end of the trial. After 10 O.P(C) No.2893 of 2017 considering the rival contentions, the court below dismissed I.A No.1475/2017 holding that the intention of the petitioner/ defendant is only to protract the disposal of O.S No.155/2013, which is ordered to be finally disposed of within a time limit of six months by the judgment of this Court. The reasoning of the court below in rejecting I.A No.1475/2017 by Ext.P17 order cannot also be termed either perverse or patently illegal warranting interference by this Court. In the result, this original petition fails and the same is accordingly dismissed. Sd/- **ANIL K.NARENDRAN, JUDGE** vgd