Rathi P. T. v. Pavithran T.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR TUESDAY, THE 21[ST] DAY OF MARCH 2023 / 30TH PHALGUNA, 1944 O.P. (FC) NO. 530 OF 2022 AGAINST THE ORDER DATED 05.09.2022 IN I.A.NO.2 OF 2022 IN O.P.NO.252 OF 2022 OF THE FAMILY COURT, KANNUR PETITIONER:** **RATHI P T AGED 58 YEARS ALINKEEL, KOLACHERI NARATH P.O., KANNUR DISTRICT, PIN – 670601.** **BY ADVS. ASWIN GOPAKUMAR ANWIN GOPAKUMAR ADITYA VENUGOPALAN NIKITHA SUSAN PAULSON IJAS MUHAMMED DONA MARY E.J.** **RESPONDENT:** **PAVITHRAN T., AGED 67 YEARS, ASHRAMAM, PILATHARA P.O., CHERUTHAZHAM PANCHAYATH, KANNUR DISTRICT, PIN – 670501.** **BY ADVS. P.V.ANOOP PHIJO PRADEESH PHILIP** **THIS OP (FAMILY COURT) HAVING COME UP FOR FINAL HEARING ON 21.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 O.P.(FC) No.530 of 2022 ## **JUDGMENT** ## P.G. Ajithkumar, J. The order of the Family Court, Kannur dated 05.09.2022 in I.A.No.2 of 2022 in O.P.No.252 of 2022, Ext.P7, is sought to be set aside in this Original Petition filed under Article 227 of the Constitution of India. 2. On 13.09.2022, this Original Petition was admitted and notice was directed to be served on the respondent. Interim order for a period of one month was granted. The said interim order was extended from time to time. 3. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent. 4. Ext.P2 is a copy of the petition in O.P.No.252 of 2022. The petitioner has filed the said original petition seeking a decree restraining the respondent from dispossessing the petitioner of the petition schedule property and house therein. A decree of injunction restraining the respondent from alienating or encumbering the plaint schedule property is also 3 O.P.(FC) No.530 of 2022 sought. The petitioner is the wife of the respondent. She would contend that petition A-Schedule property was bought by the father of the respondent, and the building thereon was constructed using her funds also. The case is that the building was constructed by pledging and selling her gold ornaments. The petitioner claims that there was an understanding that the property would be transferred in the name of the petitioner also. However, that was not done. Now, the respondent has been taking steps to evict the petitioner, who has been residing there for long and to alienate the property. It is in the said circumstances, the petitioner has filed O.P.No.252 of 2022 claiming a decree of injunction. 5. The petitioner has filed I.A.No.2 of 2022 seeking a temporary injunction in the same line as sought in the original petition. The respondent filed objection to the said interlocutory application refuting the contentions and claims of the petitioner. The respondent denied that the petitioner has contributed her gold ornaments and funds for the construction of the building. It is stated that the respondent has already 4 O.P.(FC) No.530 of 2022 filed O.P.No.No.7 of 2021 seeking a decree of divorce. His further contention is that in order to meet the expenses of his treatment for cancer in United States, he requires huge amounts, for which he proposes to sell the property. He already had entered into an agreement with a prospective purchaser. The respondent has no right in the property and therefore she is not entitled to claim an injunction as prayed in the O.P.No.252 of 2022 and the I.A.No.2 of 2022. 6. The Family Court considered in detail the materials on record and the rival contentions. Although the petitioner raised a contention that she has right in petition A-schedule property, the tenor of her pleadings is to the effect that making use of her funds also the building in the property was constructed. There is no specific pleading to the effect that the petitioner had contributed any amount for the purchase of the said property. Admittedly, the respondent is the title holder of the landed property and her claim is limited to the extent that she contributed money for the construction of the building. There is no material in order to show that the 5 O.P.(FC) No.530 of 2022 petitioner has any vested right or interest in the landed property. Therefore the claim of the petitioner can maximum be in respect of the building. The Family Court ordered to continue the prohibitory injunction in respect of the residential building. Obviously, the property where the building is situated shall be retained without alienation in the light of that order. The rest of the property was excluded from the order of injunction by the Family Court. As pointed out above, the petitioner can have no claim over the property except the building. In such circumstances, we are of the view that the order passed by the Family Court restricting her right in respect of the building alone cannot be said to be incorrect. 7. Article 227 of the Constitution of India deals with power of superintendence over all courts by the High Court. Under clause (1) of Article 227 of the Constitution, every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction. 6 O.P.(FC) No.530 of 2022 ## 8. 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. 9. 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 7 ## O.P.(FC) No.530 of 2022 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 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. 10. 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. 8 O.P.(FC) No.530 of 2022 ## 11. 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 principles of law. In view of the law laid down in the decisions referred to above, 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 the Family Court. 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 9 O.P.(FC) No.530 of 2022 passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice. Therefore, no interference under Article 227 is called for, unless this Court finds that the Family Court has committed manifest error, or the reasoning is palpably perverse or patently unreasonable or the basic principles of natural justice have been flouted. 12. We find no such reason enabling this Court to interfere with the order of the Family Court. We are therefore of the view that Ext.P7 order is not liable to be interfered with by this Court in the exercise of powers under Article 227 of the Constitution of India. This Original Petition therefore fails and it is dismissed. **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** **Sd/P.G. AJITHKUMAR, JUDGE** dkr 10 O.P.(FC) No.530 of 2022 ## **APPENDIX OF OP (FC) 530/2022** ## **PETITIONER EXHIBITS** **EXHIBIT P1 TRUE COPY OF THE JENM DEED DATED 25.04.1985** - **EXHIBIT P2 TRUE COPY OF THE ORIGINAL PETITION NO. 252 OF 2022** - **EXHIBIT P3 TRUE COPY OF THE INTERLOCUTORY APPLICATION NO. 2 OF 2022 FOR TEMPORARY INJUNCTION FILED BY THE PETITIONER IN OP 252 OF 2022** - **EXHIBIT P4 TYPED COPY OF THE PROCEEDINGS CONTAINED IN THE A-DIARY OF O.P. NO. 252 OF 2022** - **EXHIBIT P5 TRUE COPY OF THE COUNTER TO THE APPLICATION FOR TEMPORARY INJUNCTION FILED BY THE RESPONDENT IN IA 2 OF 2022 ALONG WITH TYPED COPY** - **EXHIBIT P6 TRUE COPY OF THE APPLICATION FOR ADJOURNMENT FILED BY THE PETITIONER'S COUNSEL** - **EXHIBIT P7 TYPED COPY OF THE PROCEEDINGS CONTAINED IN THE A-DIARY OF O.P. NO. 252 OF 2022** - **EXHIBIT P8 EXHIBIT P-8 - CERTIFIED COPY OF THE OF THE ORDER DATED 5TH SEPTEMBER 2022 PASSED BY THE FAMILY COURT, KANNUR IN I.A. NO. 2 OF 2022**