T.S. Asokan v. V.M. Sunilkmar

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY, THE 15TH DAY OF NOVEMBER 2017/24TH KARTHIKA, 1939** **OP(C).No. 3275 of 2017 (O) ---------------------------** **OS 526/2016 OF MUNSIFF COURT, ERNAKULAM. OS 12/2017 OF SUB COURT, ERNAKULAM.** **.......** ## **PETITIONER:** ## **-----------** **T.S.ASOKAN, AGED 64 YEARS, S/O.SREEDHARAN, THUNDIPARAMBIL HOUSE, HOUSE NO 16/571/A1, THOPPUMPADY P.O, KOCHI - 5, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER T.S BABU, AGED 66 YEARS, S/O.SREEDHARAN, RESIDING AT DO- DO-** **BY ADV. SRI.B.KRISHNA MANI** **RESPONDENT:** **-----------** **V.M.SUNILKMAR, AGED 40 YEARS, S/O. MOHANAN, CHATHANKARIYIL HOUSE, UDAYANAPURAM P.O, VAIKOM.** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 15-11-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **mbr/** ## **OP(C).No. 3275 of 2017 (O) ---------------------------** ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** - **EXHIBIT P1: TRUE COPY OF THE O.S 526/2016 BEFORE THE MUNSIFF'S COURT, ERNAKULAM DATED 31/3/2016.** - **EXHIBIT P2: TRUE COPY OF THE WRITTEN STATEMENT DATED 18/8/2016 IN O.S 526/2016 BEFORE THE MUNSIFF'S COURT, ERNAKULAM.** - **EXHIBIT P3: TRUE COPY OF THE PLAINT , O.S 12/2017 DATED 10/1/2017 BEFORE THE MUNSIFF'S COURT, ERNAKULAM.** - **EXHIBIT P4: TRUE COPY OF THE WRITTEN STATEMENT DATED 28/2/2017 IN O.S 12/2017 BEFORE THE MUNSIFF'S COURT, ERNAKULAM.** - **EXHIBIT P5: TRUE COPY OF THE APPLICATION DATED 3/11/2017 IN O.S 12/2017 BEFORE THE MUNSIFF'S COURT, ERNAKULAM.** **EXHIBIT P6: TRUE COPY OF THE APPLICATION I.A 5273/2017 IN O.S 12/2017 DATED 4/11/2017 BEFORE THE MUNSIFF'S COURT, ERNAKULAM. EXHIBIT P7: TRUE COPY OF THE DETAILED COUNTER AFFIDAVIT DATED 6/11/2017 IN I.A 5273/2017 IN O.S 12/2017 BEFORE THE MUNSIFF'S COURT, ERNAKULAM. EXHIBIT P8: TRUE COPY OF THE ORDER DATED 7/11/2017 IN I.A 5273/2017 IN O.S 12/2017 BEFORE THE MUNSIFF'S COURT, ERNAKULAM. RESPONDENTS' EXHIBITS: NIL.** **//TRUE COPY//** **P.S. TO JUDGE** **mbr/** ## **ANIL K.NARENDRAN, J.** ## **----------------------------------------------O.P.(C)No.3275 of 2017 -----------------------------------------------** Dated this the 15[th] day of November, 2017 ## **J U D G M E N T** The petitioner, who is the plaintiff in O.S.No.526 of 2016 on the file of the Munsiff's Court, Ernakulam, and the defendant in O.S.No.12 of 2017 on the file of the Sub Court, Ernakulam, which are now pending before the II Additional Sub Court, Ernakulam, is before this Court in this original petition under Article 227 of the Constitution of India, seeking an order to set aside Ext.P8 order dated 7.11.2017 of the II Additional Sub Court, Ernakulam, in I.A.No.5273 of 2017, whereby Ext.P6 interlocutory application filed by the plaintiff in O.S.No.12 of 2017, who is the respondent herein, seeking an order to review the order of the said court dated 3.11.2017 and to re-open evidence in O.S.No.12 of 2017, stands allowed. 2. Heard the learned counsel for the petitioner, who is the plaintiff in O.S.No.526 of 2016 and the defendant in O.S.No.12 of 2017. O.P.(C)No.3275 of 2017 :-2-: 3. The pleadings and materials on record would show that on 3.11.2017, O.S.Nos.526 of 2016 and 12 of 2017, which are being tried jointly pursuant to an order passed by the District Court, Ernakulam in T.O.P.No.142 of 2017, were listed for evidence, treating O.S.No.12 of 2017 as the leading case. On that day, the learned counsel for the plaintiff in O.S.No.12 of 2017, who is the respondent in this original petition, was not able to appear before the court, as he has to be present at St.Michael Orthodox Church, Mamalassery, in connection with the festival, since he is appointed as the Advocate Receiver by the District Court, Ernakulam in O.S.No.197 of 1977. Therefore, the plaintiff filed I.A.No.5253 of 2017 in O.S.No.12 of 2017, seeking an order to post the said case on another day. However, the said application ended in dismissal by the order dated 3.11.2017. DW1 was examined in chief and the court has also recorded 'no cross' from the side of the plaintiff. 4. Seeking an order to review the said proceedings, the plaintiff filed I.A.No.5273 of 2017 with a prayer to review the O.P.(C)No.3275 of 2017 :-3-: order dated 3.11.2017 and to re-open the evidence in O.S.No.12 of 2017. The relief sought for in that interlocutory application was opposed by the petitioner, who is the defendant in that suit, by filing Ext.P7 counter affidavit. The court below by Ext.P8 order dated 7.11.2017 allowed the said application. Feeling aggrieved, the petitioner, who is the defendant in that suit, is before this Court in this original petition. 5. A perusal of the affidavit filed in support of Ext.P5 interlocutory application would show that, the absence of the learned counsel for the plaintiff in O.S.No.12 of 2017 before the court below on 3.11.2017 was on account the fact that he has to be present at St.Michael Orthodox Church, Mamalassery, in connection with the festival, since he is appointed as the Advocate Receiver by the District Court, Ernakulam in O.S.No.197 of 1977. The said fact is not in dispute in Ext.P7 counter affidavit filed by the defendant. Further, on the very next day, i.e., on 4.11.2017 itself, the plaintiff in O.S.No.12 of 2017 filed Ext.P6 interlocutory application for review, which now O.P.(C)No.3275 of 2017 :-4-: stands allowed by Ext.P8 order. Mere misquoting of provision in Ext.P6 is not a ground to reject the relief sought for in that interlocutory application. 6. The learned counsel would submit that the petitioner/defendant, who is working in Oman, came to India on the date of trial, i.e., on 3.11.2017, and after recording evidence he has returned to Muscat. Mere inconvenience of the petitioner/ defendant is not a valid ground to reject Ext.P6 interlocutory application for review, which was filed on the very next day, i.e., on 4.11.2017 itself, after serving copy to the learned counsel on the other side. 7. The learned counsel for the petitioner, placing reliance on the judgment of a Division Bench of this Court in **Charulatha v. Manju (1994 (1) KLT 133)** , would contend that the court below went wrong in allowing I.A.No.5273 of 2017, inasmuch as the proceedings in O.S.No.12 of 2017 recording 'no cross' cannot be reviewed in an application filed under Order XLVII, Rule 1 of the Code of Civil Procedure, 1908. O.P.(C)No.3275 of 2017 :-5-: 8. In **Charulatha's case (supra)** the question that came up for consideration before the Division Bench of this Court is as to whether the endorsement of 'no cross' made in the deposition of the witness, if considered as an interlocutory order, is an order which can be challenged in an appeal under Section 18 of the Kerala Buildings (Lease and Rent Control) Act, 1965. After referring to the provisions under Section 18 of the said Act, the Division Bench held that, Section 18 only contemplates for the purpose of appeals such orders which would affect the rights and liabilities of the parties. Orders which are necessary for the proper prosecution of the litigation and pertaining to matters merely of procedure or evidence or steps in the proceedings are not appealable. Therefore, the Division Bench held that the recording of endorsement 'no cross' in the deposition is not a matter which can be challenged in an appeal filed under Section 18 of the said Act. The principle laid down in **Charulatha's case (supra)** will not in any manner support the case of the petitioner/defendant that the proceedings in O.S.No.12 of 2017 O.P.(C)No.3275 of 2017 :-6-: recording 'no cross' cannot be reviewed in an application filed under Order XLVII, Rule 1 of the Code. 9. 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. 10. 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 O.P.(C)No.3275 of 2017 :-7-: 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. 11. Viewed in the light of the law laid down in the decisions _supra_ , I find absolutely no grounds to interfere with Ext.P8 order passed by the court below, in exercise of the supervisory jurisdiction under Article 227 of the Constitution of India. Though Ext.P8 is a cryptic order, considering the case put forward by the respondent/plaintiff in the affidavit accompanying to Ext.P6 interlocutory application and also the nature of objections raised by the petitioner/defendant in Ext.P7 counter, it cannot be said that by allowing I.A.No.5273 of 2017, the court below has committed any manifest error, warranting an interference by this O.P.(C)No.3275 of 2017 :-8-: Court. In the result, this original petition fails and the same is accordingly dismissed. Sd/- **ANIL K. NARENDRAN JUDGE** ami/ //True copy// P.A.to Judge