Seyyadali and Maheen M v. S. Baiju Vasanth, S. Binu Vasanth, and S. Bindu Vasanth

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY, THE 1ST DAY OF NOVEMBER 2017/10TH KARTHIKA, 1939** ## **OP(C).No. 3124 of 2017 (O) ---------------------------** **IN CMA 16/2017 of I ADDL.DISTRICT COURT, TRIVANDRUM** **PETITIONER(S)/PLAINTIFF/APPELLANT: ---------------------------------** **1. SEYYADALI, AGED 39, S/O. MUHAMMEDKANNU, 'TC 39/1294', ATTAKULANGARA ROAD,MANACAUD VILLAGE, MANACAUD P.O, THIRUVANANTHAPURAM - 695 009.** **2. MAHEEN M,** **AGED 36, S/O. MUHAMMEDSALI, TC 19/2166, MANNATHMANZIL, SANKARAPARA LANE, MUDAVANMUGHAL, POOJAPPURA P.O, THIRUVANANTHAPURAM - 695 012.** **BY ADVS.SRI.T.I.UNNIRAJA SRI.S.G.SREEKANTH SRI.S.BADUSHA SRI.R.S.VISRUTH** **RESPONDENTS/RESPONDENTS/DEFENDANTS: ---------------------------------** **1. S. BAIJU VASANTH** **AGED 46, S/O. SETHUNATH, TC 42/822, PONNAMBALAM VEEDU, MUTTATHARA VILLAGE, VALLAKADAVU P.O, THIRUVANANTHAPURAM - 695 008.** **2. S. BINU VASANTH,** **AGED 32, D/O. SETHUNATH, TC 42/822, PONNAMBALAM VEEDU, MUTTATHARA VILLAGE, VALLAKADAVU P.O, THIRUVANANTHAPURAM - 695 008.** **3. S. BINDU VASANTH, AGED 30, D/O. SETHUNATH, TC 42/822, PONNAMBALAM VEEDU, MUTTATHARA VILLAGE, VALLAKADAVU P.O, THIRUVANANTHAPURAM - 695 008.** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 01-11-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **OP(C).No. 3124 of 2017 (O) ---------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS -----------------------** |**EXHIBIT P1**|**THE TRUE COPY OF THE MEMBERSHIP CERTIFICATE OF**| |---|---| ||**KERALA SAMSTHANA VYAPARAVYAVASAYA SAMITHI.**| |**EXHIBIT P2(A)**|**THE TRUE COPY OF THE MONTHLY SUBSCRIPTION OF THE**| ||**KERALA SAMSTHANA VYAPARAVYAVASAYA SAMITHI.**| |**EXHIBIT P2(B)**|**THE TRUE COPY OF THE MONTHLY SUBSCRIPTION OF THE**| ||**KERALA SAMSTHANA VYAPARAVYAVASAYA SAMITHI. DTD**| ||**20/12/2016.**| |**EXHIBIT P3**|**THE TRUE COPY OF THE NOTICE NUMBERED AS**| ||**H1/SKM/391/11 DTD 03/10/11**| |**EXHIBIT P4**|**THE TRUE COPY OF PLAINT IN O.S 2380/2016.**| |**EXHIBIT P5**|**THE TRUE COPY OF THE COMMISSION REPORT DATED**| ||**23/01/2017.**| |**EXHIBIT P6**|**THE TRUE COPY OF THE COUNTER AFFIDAVIT OF THE**| ||**RESPONDENTS IN I.A 11357/2016 BEFORE THE MUNSIFF'S**| ||**COURT -I, TVPM.**| |**EXHIBIT P7**|**THE TRUE COPY OF ORDER IN I.A 11357/2016 IN O.S**| ||**2380/16 DTD. 22/02/2017.**| |**EXHIBIT P8**|**THE TRUE COPY OF THE COUNTER AFFIDAVIT OF THE**| ||**RESPONDENTS IN CMA 16/2017 DTD 20/03/2017.**| |**EXHIBIT P9**|**THE TRUE COPY OF ORDER IN CMA 16/2017 DTD.**| ||**13/07/2017.**| **RESPONDENT(S)' EXHIBITS : NIL ----------------------//TRUE COPY//** **P.A.TO JUDGE** **sm** ## **ANIL K.NARENDRAN, J.** -------------------------------------- ## **O.P.(C) No. 3124 of 2017** ---------------------------------------Dated this the 1[st] day of November, 2017 ## **JUDGMENT** The petitioners, who are the plaintiffs in O.S.No.2380 of 2016 on the file of the First Additional Munsiff's Court, Thiruvananthapuram and appellants in C.M.A.No.16 of 2017 on the file of the first Additional District Court, Thiruvananthapuram, are before this Court in this original petition filed under Article 227 of the Constitution of India, seeking an order to set aside Ext.P7 order dated 22.02.2017 of the First Additional Munsiff's Court, whereby I.A.No.11357 of 2016 in O.S.No.2380 of 2016 stands dismissed and also Ext.P9 judgment dated 22.02.2017 of the First Additional District Court, Thiruvananthapuram, whereby C.M.A.No.16 of 2017 filed against the said order of the Munsiff's Court stands dismissed. 2. Heard the learned counsel for the petitioners/plaintiffs. 3. The sole issue that arises for consideration in this original petition is as to the legality or otherwise of Ext.P7 order and Ext.P9 judgment of the courts below, whereby the request O.P.(C) No. 3124 of 2017 : 2 : made by the petitioners for grant of an interim injunction during the pendency of O.S.No.2380 of 2016, stands rejected. 4. O.S.No.2380 of 2016 is one filed by the petitioners/plaintiffs seeking a permanent prohibitory injunction restraining the respondents/defendants from trespassing and forcibly evicting the defendants from the plaint schedule property. Going by the plaint averments, the plaintiffs were street vendors in front of the petition schedule property from the year 1998 onwards, who occupied the said property which was lying vacant, on 14.08.2002, and they continued possession from the year 2002. According to the plaintiffs, their possession of the said property was with the knowledge of one Ponnamma, who is the grandmother of the defendants. 5. Admittedly, the said Ponnamma has no ownership or title over the said property and the defendants are claiming title and ownership over the said property on the basis of a Will. 6. Along with the suit, the plaintiffs filed I.A.No.11357 of 2016, an application under Order XXXIX, Rule 1 of the Code of Civil Procedure, 1908, seeking a temporary injunction. The trial court dismissed the said interlocutory application by Ext.P7 order O.P.(C) No. 3124 of 2017 : 3 : dated 22.02.2017. The said order was under challenge in C.M.A.No.16 of 2017 filed before the lower appellate court, which also ended in dismissal by Ext.P9 judgment dated 22.02.2017. The reasoning of the lower appellate court, as contained in paragraphs 17 to 21 of the said order reads thus; “17. From the averments itself, it can be seen that they have trespassed into the plaint schedule property which was in possession of the grandmother of the respondents. But the grandmother was died in 1983 and so there is no meaning in saying that she was in possession in the year 2002 and she has not objected their trespass. To show that they possessed the property from 14.08.2002 onwards, no materials are available. Exts.A1 to A3 are the documents relied by the petitioners to prove their possession. Ext.A1 is a membership certificate issued by Vypari Vyavasayi Samithi, which only proves the membership of the petitioners with that association. It is not sufficient to show that they are possessing the petition schedule property or conducting any business therein. Exts.A2 and A3 are two receipts showing the payment of subscription by the petitioners. None of these documents are sufficient to prove the possession of the petition schedule property by the petitioners. 18. Petitioners say they were doing business in the petition schedule property from 2002 onwards. For doing these business, they have not taken any licence from the Corporation. It cannot be believed that they were doing O.P.(C) No. 3124 of 2017 : 4 : the business without any licence for the last 15 years, in a place which lies in the heart of the city. 19. Petitioners are admitting that previous owner Ponnamma was having the knowledge of their entry into the property. Her son Sethunath who was conducting a business in the next shop room was also aware of the trespass. But according to petitioners, both of them permitted to continue their business without getting any rent or licence fee. An ordinary prudent man cannot believe this version given by the petitioners. Nobody will permit others to use their property to do some business without getting rent or licence fee. They contended that from 2009 to 2013, there was a rental arrangement between Sethunath and first petitioner in conducting the business. But no records to show it. The case of the petitioners that Sethunath has permitted to take electric connection unauthorisedly from his shop room is also unbelievable. 20. Ext.B1 produced by the respondents shows, wife of first respondent is having a licence to conduct the business in the name 'Kairali Fashion' in the premises. At the time of inspection, the Commissioner had seen the business conducted by the respondents therein and it was noted in the commission report. It can be seen that a good business is going on there. So the case of the petitioners that they permitted them to do the similar business in front of their shop is not a natural conduct from an ordinary man. This is more so when the petitioners are saying that without taking any O.P.(C) No. 3124 of 2017 : 5 : ## consideration from them, they were permitted to do business there. 21. Ext.C1 commission report shows the plaint schedule property is part of the respondents building and there is no separate demarcation of this. So the case of the respondents that the petition schedule property is part of the property obtained by them as per the Will executed by their grandmother has to be taken as a probable one. Apart from the unbelievable statements by the petitioners that they were in possession of the petition schedule property from 2002 onwards, absolutely there is nothing on record to prove that they were in possession of the same at any point of time. So the petitioners failed to prove their prima facie case to get an order of temporary injunction. So they are not entitled to get any relief as claimed for. Point answered accordingly. (underline supplied) 7. 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 O.P.(C) No. 3124 of 2017 : 6 : 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. 8. 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 exercise such wide powers O.P.(C) No. 3124 of 2017 : 7 : 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. 9. 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. O.P.(C) No. 3124 of 2017 : 8 : 10. In the instant case, the plaintiffs could not produce any material before the courts below to show that they are running the shops in question after obtaining licence from the local authority. Apart from their statement in the plaint and the affidavit accompanying to the interlocutory application, they could not produce any material to prove that they are in possession of the petition schedule property from the year 2002 onwards. As the plaintiffs failed to prove prima facie case, the courts below rightly declined the interim injunction sought for in I.A.No.11357 of 2016. 11. Viewed in the light of the law laid down in the decisions referred to above, the reasoning of the courts below in Ext.P7 order and Ext.P9 judgment 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 order/judgment the courts below committed any manifest error or the reasoning in the said orders is palpably perverse or patently unreasonable. 12. In the result, this Original Petition fails and the same O.P.(C) No. 3124 of 2017 : 9 : is accordingly dismissed. It is made clear that the trial court shall proceed with the trial of O.S.No.2380 of 2016 untrammeled with the observations contained in Ext.P7 order and Ext.P9 judgment. **ANIL K. NARENDRAN JUDGE** sm/