Sreelatha, Vipin and Vijin v. Santha

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 23RD DAY OF OCTOBER 2017/1ST KARTHIKA, 1939** **OP(C).No. 2207 of 2016 (O) --------------------------IA 655/2016 IN OS 597/2015 OF MUNSIFF COURT, PUNALUR -------------** **PETITIONER(S):** **-------------** **1. SREELATHA, AGED 49 YEARS, W/O. VIJAYAN, VIPIN NIVAS, NEAR YEROOR HIGH SCHOOL, YEROOR VILLAGE, PUNALUR TALUK KOLLAM DISTRICT. PIN- 691 305** **2. VIPIN,S/O VIJAYAN, AGED 30 YEARS, VIPIN NIVAS, NEAR YEROOR HIGH SCHOOL, YEROOR VILLAGE, PUNALUR TALUK, KOLLAM DISTRICT, PIN- 691 305. 3. VIJIN, S/O. VIJAYAN,AGED 28, VIPIN NIVAS, NEAR YEROOR HIGH SCHOOL, YEROOR VILLAGE, PUNALUR TALUK, KOLLAM DISTRICT PIN- 691 305. BY ADVS.SRI.G.P.SHINOD SRI.RAM MOHAN.G. SRI.GOVIND PADMANAABHAN SRI.AJIT G.ANJARLEKAR** **RESPONDENT:** **----------** **SANTHA, D/O. CHELLAMMA, AGED 68 YEARS, NADUKKUNNUPURATH VEEDU, YEROOR VILLAGE, PUNALUR TALUK, KOLLAM DISTRICT PIN- 691 305.** **BY ADVS. SRI.SUBHASH CYRIAC SRI.S.SREEJITH** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 23-10-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **K.V.** ## **OP(C).No. 2207 of 2016 (O)** ## **---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** ## **-----------------------** **EXT. P1 A TRUE COPY OF THE PLAINT DATED 18.12.2015 IN O.S. NO. 597 OF 2015 ON THE FILES OF THE MUNSIFF COURT, PUNALUR. EXT. P2` A TRUE COPY OF THE WRITTEN STATEMENT DATED 25.02.2016 FILED BEFORE THE MUNSIFF COURT, PUNALUR IN O.S. NO. 597 OF 2015. EXT. P3 A TRUE COPY OF THE ORDER DATED 27.01.2016 IN I.A NO. 3425/2015 IN O.S. NO. 597 OF 2015 OF THE MUNSIFF COURT, PUNALUR. EXT. P4 A TRUE COPY OF THE PETITION DATED 05.03.2016 IN I.A. NO. 655/2016 IN O.S. NO. 597 OF 2015 FILED BEFORE THE MUNSIFF COURT, PUNALUR EXT. P5 A TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENT DATED 16.03.2016 BEFORE THE MUNSIFF COURT, PUNALUR IN I.A. NO. 655 OF 2016 IN O.S. NO. 597 OF 2015. EXT. P6 A TRUE COPY OF THE ORDER DATED 01.04.2016 IN I.A. NO. 655 OF 2016 I O.S. NO. 597 OF 2015 OF THE MUNSIFF COURT, PUNALUR. RESPONDENT(S)' EXHIBITS NIL -----------------------** **K.V. P.S.TO JUDGE** ## **ANIL K.NARENDRAN, J.** **--------------------------------------O.P.(C).No.2207 of 2016 ---------------------------------------Dated this the 23[rd] day of October, 2017** ## **J U D G M E N T** The petitioners, who are the defendants in O.S.No.597 of 2015 on the file of the Munsiff's Court, Punalur, have filed I.A.No.655 of 2016 seeking leave of the court to continue the construction within the plaint schedule property, in the light of the observations made by the said court in Ext.P3 order dated 27.01.2016 in I.A.No.3425 of 2015. The relief sought for in the said interlocutory application was opposed by the respondent/plaintiff by filing Ext.P5 objection. After considering the rival contentions, the court below by Ext.P6 order dated 01.04.2016, dismissed I.A.No.655 of 2016 and the reasoning of the court below, as contained in paragraph 4 of the said order, reads thus : _“4. At the time of hearing counsel for respondents/plaintiff heavily relied on Ext.B2 - sale deed with regard to property comprised in survey No.970/1, having an extent of 10.11 Ares of Kulathupuzha village, acquired by 2[nd] defendant. According to respondents/plaintiffs contention of petitioners that they have no other property is false. IA.3425/2015 disposed on 27.01.2016. Admittedly, there is no other material introduced to alter the order in IA.3425/2015. According to plaintiffs D3 & D4 are working as teacher and mobile shop owner respectively. There is no material to form an opinion that 1[st] defendant expired due to dilapidated condition of shed. On over all consideration of entire material I am of the firm view that no circumstance introduced which_ O.P.(C).No.2207 of 2016 2 _commands an alteration to the order in IA.3425/2015 passed on 27.01.2016.”_ Feeling aggrieved by the said order, the petitioners are before this Court in this original petition filed under Article 227 of the Constitution. On 22.09.2016, this Court admitted the matter on file and issued notice by speed post to the respondent. 2. Heard the learned counsel for the petitioners/defendants and also the learned counsel for the respondent/plaintiff. 3. O.S.No.597 of 2015 is one filed by the respondent/plaintiff seeking a permanent prohibitory injunction, restraining the defendants from effecting any construction in the plaint schedule property and for a mandatory injunction directing them to vacate the plaint schedule property. The plaint schedule property is having a total extent of 22.5 cents comprised in Survey No.585/9 of Yeroor Village. The defendants resisted the suit by filing Ext.P2 written statement, wherein, they denied the title of the plaintiff over the plaint schedule property and asserted independent possessory right over the same. 4. Along with the suit, the plaintiff filed I.A.No.3425 of 2015, an application for temporary injunction. The defendants filed objection, resisting the relief sought for in that application. After considering the rival contentions, the court below disposed of the said interlocutory application by Ext.P3 order dated 27.01.2016 O.P.(C).No.2207 of 2016 3 directing the parties to maintain _status quo_ and further observing that the defendants shall not proceed with further construction in the plaint schedule property without leave of the court. 5. Subsequent to Ext.P3 order, the defendants filed I.A.No.655 of 2016 seeking an order permitting them to proceed with construction of house in the plaint schedule property. The relief sought for in Ext.P4 interlocutory application was opposed by the plaintiff by filing Ext.P5 objections. After considering the rival contentions, the court below dismissed I.A.No.655 of 2016 by Ext.P6 order dated 01.04.2016. The reasoning of the court below, as contained in paragraph 4 of the said order reads thus : _“4. .... .... On close perusal of rival contentions it is brought out that I.A.3425/2015 disposed directing both parties to keep present status of plaint schedule property as noted in Ext.C1 to C3 till disposal of lis. It was also made clear that respondents shall not proceed with construction in plaint schedule property without leave of court. At the time of hearing counsel for respondents/ plaintiff heavily relied on Ext.B2 - sale deed with regard to property comprised in survey No.970/1, having an extent of 10.11 Ares of Kulathupuzha village, acquired by 2[nd] defendant. According to respondents/ plaintiffs contention of petitioners that they have no other property is false. I.A.3425/2015 disposed on 27.01.2016. Admittedly there is no other material introduced to alter the order in IA.3425/2015. According to plaintiffs D3 & D4 are working as teacher and mobile shop owner respectively. There is no material to form an opinion_ O.P.(C).No.2207 of 2016 4 _that 1[st] defendant expired due to dilapidated condition of shed. On over all consideration of entire material I am of the firm view that no circumstance introduced which commands an alteration to the order in IA.3425/2015 passed on 27.01.2016.”_ 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 subordinate to the High Court. 7. 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 5 O.P.(C).No.2207 of 2016 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. 8. Viewed in the light of the law laid down in the decisions referred to supra, the reasoning of the court below in Ext.P6 order cannot be termed as either perverse or illegal, warranting an interference of this Court under Article 227 of the Constitution of India. It cannot be said that while issuing the said order, the court below committed any manifest error or that the said order is in direct conflict with settled principles of law. In the said order, after taking into consideration the circumstances pointed out by the plaintiff with reference to Ext.B2 sale deed, the court below found that there is no circumstance warranting alteration of the order of _status quo_ issued in Ext.P6 order. In such circumstances, the challenge made in this Original Petition against Ext.P6 order passed by the court below fails. 9. The learned counsel for the petitioners/defendants would submit that the defendants may be permitted to repair the shed in the plaint schedule property, which is in a dilapidated condition. The learned counsel for the respondent/plaintiff strongly opposed the said request. It is made clear that the dismissal of this Original O.P.(C).No.2207 of 2016 6 Petition will not stand in the way of an application being made by the petitioners/defendants for such relief and the court below considering that application in accordance with law. 9. Considering the fact that the suit is of the year 2015, this Court deem it appropriate to direct the court below to finally dispose of the suit, as expeditiously as possible, at any rate, within a period of six months from the date of production of a certified copy of this judgment. With the above observations, this Original petition is dismissed. Sd/- **ANIL K.NARENDRAN JUDGE** AV