P.K. Karthyayani v. E.N. Soman

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 6TH DAY OF NOVEMBER 2017/15TH KARTHIKA, 1939** ## **OP(C).No. 3128 of 2017 (O)** **--------------------------IA 668/2017 IN OS 16/2014 OF SUB COURT, HOSDURG** **----------** ## **PETITIONER/DEFENDANT:** **--------------------** **P.K.KARTHYAYANI AGED 66 YEARS, W/O. KUTTAPPAN, RESIDING AT ANANDA BHAVAN, P.O. PUTHARIYADUKKAM, PEROLE VILLAGE, KASARGOD DISTRICT.** **BY ADVS.SRI.SURESH KUMAR KODOTH SRI.K.P.ANTONY BINU** ## **RESPONDENT/PLAINTIFF:** **---------------------** **E.N.SOMAN, AGED 64 YEARS, S/O. LATE NARAYANAN, RESIDING AT SANGEETHA HOUSE, PEROLE P.O.NILESHWAR, KASARGOD DISTRICT - 671 314.** **BY ADVS. SRI.V.G.ARUN** **SRI.T.R.HARIKUMAR** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 06-11-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **KV.** ## **OP(C).No. 3128 of 2017 (O) ---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-----------------------** **EXHIBIT P1 TRUE COPY OF PLAINT IN O.S.NO.16/2014 OF THE SUB COURT HOSDURG. EXHIBIT P2 TRUE COPY OF THE WRITTEN STATEMENT IN OS NO. 16/2014. EXHIBIT P3 TRUE COPY OF I.A.NO. 668/2017. EXHIBIT P4 TRUE COPY OF ORDER DATED 24.10.2017 IN IA.NO. 668/2017. EXHIBIT P5 TRUE COPY OF ORDER DATED 24.10.2017 IN I.A.NO. 691/2017.** **RESPONDENT(S)' EXHIBITS NIL -----------------------** **/TRUE COPY/ K.V. P.S.TO JUDGE** ## **ANIL K. NARENDRAN, J. --------------------------------------O.P(C) No.3128 of 2017 -------------------------------------------** Dated this the 6[th] day of November, 2017 ## **J U D G M E N T** The petitioner, who is the defendant in O.S.No.16 of 2014 on the file of the Subordinate Judge's Court, Hosdurg and the petitioner in I.A.Nos.668 of 2017 and 691 of 2017 filed in that suit, is before this Court in this Original Petition filed under Article 227 of the Constitution of India seeking an order to set aside Exts.P4 and P5 orders of the said court in those interlocutory applications. 2. On 27.10.2017, when this Original Petition came up for admission, this Court issued urgent notice on admission to the respondent by special messenger. 3. Heard the learned counsel for the petitioner/defendant and also the learned counsel for the respondent/plaintiff. 4. The issue that arises for consideration in this Original Petition is as to whether any interference is warranted on Exts.P4 and P5 orders passed by the said court in I.A. Nos.668 of 2017 and 691 of 2017 in O.S.No.16 of 2014. The main challenge in this Original Petition is against Ext.P4 order passed by the said court in O.P(C) No.3128 of 2017 :-2-: ## I.A. No.668 of 2017 in O.S.No.16 of 2014. 5. O.S.No.16 of 2014 is one filed by the respondent/ plaintiff for return of advance amount amounting to 11,28,657/-₹ from the petitioner/defendant with interest at the rate of 12% per annum on the principal amount of 10,00,000/- from the date of₹ suit till date of payment. The said suit is one based on a sale agreement dated 12.12.2012 entered into between the plaintiff and the defendant in respect of plaint A schedule property for a total sale consideration of 20,00,000/-. Going by the plaint averments,₹ at the time of execution of the said agreement, the plaintiff paid a sum of ₹10,00,000/- to the defendant towards advance sale consideration. The defendant entered appearance and filed Ext.P2 written statement dated 15.1.2015. 6. The trial of the suit commenced on 9.10.2017 by examining the plaintiff as PW1. PWs.2 and 3 were also examined on the side of the plaintiff. Then defendant filed Ext.P3 application, i.e., I.A.No.668 of 2017, an application under Order XXVI Rule 9 of the Code of Civil Procedure, 1908 seeking an order to appoint an Advocate Commissioner to note and report certain points mentioned O.P(C) No.3128 of 2017 :-3-: ## in the said application, which read thus; - “1. To measure the property shown by the plaintiff as plaint schedule property within the physical boundaries and report the extent and compare it with the document No.2006/2007 executed on 11.7.2007 and assess the market value of the land and building. 2. To note the boundary holders of the said property. 3. To note whether the extent or boundaries at site tally within that of the plaint schedule property. 4. To note such other points shown to and seen by the Commissioner at the time of inspection.” 7. The defendant has also filed I.A.No.691 of 2017, an application under Order XVIII Rule 17 of the Code seeking an order to recall PW1. Both the above applications are dismissed by the court below by Exts.P4 and P5 orders dated 24.10.2017, which are under challenge in this Original Petition. 8. I.A.No.668 of 2017 filed by the petitioner/defendant for the appointment of an Advocate Commissioner was dismissed by Ext.P4 order. The reasoning of the court below, as contained in paragraph 6 of the said order, reads thus; “6. The alleged agreement between the parties was in 2012. The suit was filed in 2014. Ext.A19 sale deed of 2007 would show that the defendant had purchased 50 cents in Resurvey O.P(C) No.3128 of 2017 :-4-: 180/1 with building bearing No.NPW-1/7 within the boundaries stated in the plaint schedule. The defendant has not raised a contention in the written statement that the valuation shown in the sale agreement is too low. The defendant wants to take out a commission to ascertain the boundary property holders of the plaint schedule property and also to find out the extent of the property. If commission is taken now most probably several transactions may have occurred in respect of the adjacent properties and there would be change in the name of boundary holders. It is better to produce documents to prove that the boundary property holders in 2012 are persons other than those stated in the plaint schedule. By a local commission at this stage, it is difficult to ascertain who were holding the properties adjacent to the plaint schedule property in 2012. The suit is not for a decree of specific performance, but one for return of advance sale consideration. The only question to be considered is whether the defendant executed the unregistered agreement for sale and received Rs.10,00,000/-. So the question of extent of plaint schedule property available at site is not relevant. In such circumstance, there is no need to take out a commission for determination of the issues raised in the suit. Hence the petition stands dismissed.” (underline supplied) 9. During the course of arguments, the learned counsel for the respondent/plaintiff made available for the perusal of this Court the deposition of the petitioner/defendant as DW1. During cross- O.P(C) No.3128 of 2017 :-5-: examination, DW1 has admitted that 50 cents of land purchased in the year 2007 is having boundary wall with 2 meters height on its northern, southern and western boundaries. On the eastern side there is 'kayyala' (mud wall) having 1 meter height. DW1 has also admitted that the boundary description in Ext.A19 title deed is correct and that, the boundary description of the property is correctly shown in the plaint schedule. In such circumstances, reasoning of the court below in Ext.P4 order dated 24.10.2017 for rejecting I.A.No.668 of 2017 filed for appointment of an Advocate Commissioner cannot be termed either perverse or patently illegal, warranting an interference in this Original Petition, in exercise of the supervisory jurisdiction under Article 227 of the Constitution of India. 10. The court below by Ext.P5 order dated 24.10.2017 rejected I.A.No.691/2017 filed seeking an order to recall PW1. The petitioner/defendant filed such an application stating that after examination of PW1 several documents were produced and the contents of those documents are to be elicited by cross-examination of PW1. The court below in Ext.P5 order found that, Exts.A16 to A21 O.P(C) No.3128 of 2017 :-6-: documents were marked on consent and those documents were marked only to disprove the contentions raised by the defendant during cross examination of PW1. As Exts.A16 to A21 documents are certified copies of the title deed of the defendant and encumbrance certificates of that property, which are marked on consent, there is no reason to recall PW1 for the purpose of crossexamination regarding these documents. The said reasoning in Ext.P5 order cannot also be termed either perverse or patently illegal, warranting an interference in exercise of the supervisory jurisdiction under Article 227 of the Constitution. 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 O.P(C) No.3128 of 2017 :-7-: 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 quasi judicial tribunals, exercise the powers vested in them, within the bounds of their authority. The High Court has the power and the jurisdiction to ensure that they act in accordance with the well established principles of law. The High Court is vested with the powers of superintendence and/or judicial revision, even in matters where no revision or appeal lies to the High Court. The jurisdiction under this Article is, in some ways, wider than the power and jurisdiction under Article 226 of the Constitution of India. It is, however, well to remember the well known adage that greater the power, greater the care and caution in exercise thereof. The High Court is, therefore, expected to O.P(C) No.3128 of 2017 :-8-: exercise such wide powers with great care, caution and circumspection. 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 **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 O.P(C) No.3128 of 2017 :-9-: 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.P4 and P5 orders are neither perverse nor patently illegal, warranting an interference in this Original Petition invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India. It cannot also be said that, while issuing the impugned orders the court below committed any manifest error or that, the reasoning in the said orders is palpably perverse or patently unreasonable. In the result, this Original Petition fails and the same is accordingly dismissed. Sd/- **ANIL K. NARENDRAN JUDGE** //True Copy// P.A to Judge ab