Sibichan Sebastian @ Mon v Kochuthressia

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 28TH DAY OF NOVEMBER 2017/7TH AGRAHAYANA, 1939** **OP(C).No. 873 of 2017 (O)** **-------------------------------------** **I.A.NO. 1709/2016 IN I.A.NO. 1218/2016 IN A.S.NO. 3/2014 OF THE ADDITIONAL DISTRICT COURT-II, ALAPPUZHA** **----------------** ## **PETITIONER(S)/APPELLANT/DEFENDANT :** **----------------------------------------------------------------** **SIBICHAN SEBASTIAN @ MON AGED 47 YEARS, S/O.DEVASSIA SEBASTIAN, THARYIL VEEDU, KAINADY.P.O., KAVALAM VILLAGE, KUTTANAD, ALAPPUZHA DISTRICT- 686 534.** **BY ADVS. SRI.S.SANAL KUMAR SMT.BHAVANA VELAYUDHAN** **RESPONDENT(S)/RESPONDENT/PLAINTIFF : -------------------------------------------------------------------** **KOCHUTHRESSIA, W/O. THOMAS VARGHESE, THOPPIL HOUSE, ALUMTHURUTHY, IDINJILLAM.P.O., THIRUVALLA, PATHANAMTHITTA DISTRICT-689 102.** **BY ADV. SRI.A.SHAFEEK (KAYAMKULAM)** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 28-11-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Msd.** **OP(C).No. 873 of 2017 (O)** **--------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS :** - **P1 TRUE COPY OF THE PLAINT IN O.S NO.852/2010 FILED BY THE RESPONDENT BEFORE THE ADDITIONAL MUNSIFF COURT, ALAPPUZHA DATED 10.12.2010.** - **P2 TRUE COPY OF THE WRITTEN STATEMENT IN O.S NO.852/2010 FILED BY THE PETITIONER BEFORE THE MUNSIFF COURT, ALAPPUZHA DATED 20.6.2011.** - **P3 TRUE COPY OF THE JUDGMENT IN OP(C) NO.1839/2012 DATED 18.10.2012 OF THIS HON'BLE COURT.** - **P4 TRUE COPY OF THE ORDER IN I.A NO.22/2014 IN A.S NO.3/2014 OF THE ADDITIONAL DISTRICT COURT, ALAPPUZHA DATED 28.01.2014** - **P5 TRUE COPY OF THE I.A NO.1218/2016 FILED BY THE PETITIONER BEFORE THE ADDITIONAL DISTRICT COURT, ALAPPUZHA DATED 20.08.2016.** - **P6 TRUE COPY OF THE I.A NO.1709/2016 FILED BY THE PETITIONER BEFORE THE ADDITIONAL DISTRICT COURT II, ALAPPUZHA DATED 16.12.2016.** - **P7 TRUE COPY OF THE ORDER IN I.A NO.1709/2016 IN I.A NO.1218/2016 IN A.S NO.3/14 OF THE ADDITIONAL DISTRICT COURT II, ALAPPUZHA DATED 03.03.2017.** ## **RESPONDENT(S)' EXHIBITS :** **NIL** **//TRUE COPY//** **P.S.TO JUDGE.** **Msd.** ## **ANIL K. NARENDRAN, J. ----------------------------------------------O.P(C) No.873 of 2017 -----------------------------------------------** Dated this the 28[th] day of November, 2017 ## **J U D G M E N T** The petitioner, who is the defendant in O.S. No.852/2010 on the file of the Additional Munsiff's Court, Alappuzha and the appellant in A.S.No.3/2014 on the file of the Additional District Court-II, Alappuzha has approached 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 3.3.2017 in I.A.No.1709/2016 in I.A.No.1218/2016 in A.S.No.3/2014. 2. On 9.3.2017, when this Original Petition came up for admission, this Court admitted the matter on file and issued notice by speed post to the respondent. This Court has also granted an interim order directing the petitioner to continue with the arrangement with regard to the possession and management of the plaint schedule property in O.S. No.852/2010, in accordance with the terms and conditions contained in I.A.No.22/2014 in O.P(C) No.873 of 2017 2 A.S.No.3/2014 on the file of the Additional District Court-II, Alappuzha and the said interim order is still in force. 3. Heard the learned counsel for the petitioner/ appellant and also the learned counsel for the respondent/ respondent. 4. During the course of arguments it has come out that on 25.5.2016 A.S.No.3/2014 was posted for hearing. At the instance of the petitioner/appellant the same was adjourned to 16.6.2016 and then to 27.6.2016. On 27.6.2016 the learned counsel for the appellant sought for adjournment and accordingly, the appeal was listed to 2.7.2016, as a last chance. On 2.7.2016 the learned counsel for the appellant again sought for adjournment and accordingly the appeal was adjourned to 18.7.2016 and thereafter to 25.7.2016 on condition that no further time will be granted. Despite the said order, on 25.7.2016, when the appeal was taken up for hearing, the learned counsel for the appellant sought adjournment. It was in such circumstances that the lower appellate court dismissed the appeal for non-prosecution, on 25.7.2016. 5. On 20.8.2016, the appellant filed I.A. No.1218/2016 seeking an order to restore that appeal. In the said O.P(C) No.873 of 2017 3 interlocutory application, fresh notice was issued on 22.9.2016 and on 22.10.2016, the appellant was directed to take steps and the matter was listed to 15.12.2016. On 15.12.2016 there was no representation for the appellant and as such the lower appellate court dismissed I.A.No.1218/2016 for default. Thereafter, the petitioner filed I.A.No.1709/2016 seeking an order to restore I.A.No.1218/2016, which now stands dismissed by Ext.P7 order stating that sufficient opportunity has already been granted to the appellant for hearing the appeal. 6. 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 O.P(C) No.873 of 2017 4 subordinate to the High Court. 7. 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 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 O.P(C) No.873 of 2017 5 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. 8. In the instant case, the facts disclosed from the arguments advanced by the learned counsel on both sides, make it explicitly clear that the petitioner/appellant was not diligent in prosecuting A.S.No.3/2014. Despite dismissal of the said appeal for default on 25.7.2016, the petitioner/appellant filed application for restoration, i.e, I.A.No.1218/2016 only on 20.8.2016. On 15.12.2016 I.A.No.1218/2016 was dismissed for default and the petitioner filed I.A.No.1709/2016 seeking restoration, which ended in dismissal by Ext.P7 order dated 3.3.2017. 9. In **Abdul Khader v. Surburban Chit Funds (P) Ltd. (2006 (1) KLT 749)** this Court held that, delay in the judicial process will only be further aggravated if this Court by invoking the powers under Article 227 of the Constitution of India were to show undeserved indulgence to parties to a civil suit. An incorrect impression has gained ground that any and every error, inadequacy and contumacious lethargy in the O.P(C) No.873 of 2017 6 conduct of civil cases can be corrected at later stages by approaching the superior courts. Law is for the alert. Justice can be claimed only by those who pursue the avenues open to them with diligence. 10. Having considered the rival submissions, with reference to the facts and circumstances of the case, this Court finds that Ext.P7 order whereby I.A.No.1709/2016 filed by the appellant stands dismissed, can be set aside only on payment of a cost of 20,000/-. ₹ In such circumstances, this Original Petition is disposed of setting aside Ext.P7 order dated 3.3.2017 in I.A. No.1709/2016 in A.S.No.3/2014 on payment of a cost ₹20,000/payable by the petitioner/appellant to the respondent/respondent within two weeks from the date of receipt of a certified copy of this judgment. On such payment being made within the aforesaid time limit, the lower appellate court shall consider I.A.No.1218/2016 in A.S. No.3/2014 on merits and pass appropriate orders for restoration of A.S.No.3/2014 with notice to both sides. Sd/- ab **ANIL K. NARENDRAN JUDGE** //True Copy//