T.S. BharataraJAN v Hindustan Petroleum Corporation Limited and others

_**OP(C).1907/19**_ 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **MONDAY, THE 29[TH] DAY OF NOVEMBER 2021 / 8TH AGRAHAYANA, 1943 OP(C) NO. 1907 OF 2019** **AGAINST THE ORDER/JUDGMENT IN OS 73/2017 OF I ADDITIONAL SUB COURT,ERNAKULAM** ## **PETITIONER/S:** 1 T.S.BHARATARAJAN, AGED 73 YEARS S/O.LATE T.N.SUBBARAMA IYER, A-201, KRISHNA COURT, 99/1, MANAPAKKAM MAIN ROAD, CHENNAI- 600 125. 2 T.S.SUBBALAKSHMI, AGED 71 YEARS D/O.LATE T.N.SUBBARAMA IYER, NO.822, HAL, 2ND STAGE, 11TH MAIN ROAD, INDIRA NAGAR, BANGALORE - 560 038, REP. BY HER PA HOLDER T.S.RADHA. 3 T.S.JANAKY, AGED 69 YEARS D/O.LATE T.N.SUBBARAMA IYER, FLAT NO.1, PARSN RIVEIRA APARTMENTS, OFF 4TH MAIN ROAD, KOTTURPURAM, CHENNAI - 600 085, REP. BY HER PA HOLDER T.S.RADHA. 4 T.S.RAJALAKSHMI @ S.RAJALAKSHMI, AGED 66 YEARS D/O.LATE T.N.SUBBARAMA IYER, VILLA 424, PHASE 2, ADARSH PALM MEADOWS, RAMAGONDANA HALLI, AIRPORT WHITE FIELD ROAD, BANGALORE - 560 066, REP. BY HER PA HOLDER T.S.RADHA. 5 T.S.RADHA @ SMT.RADHA GANESH, AGED 57 YEARS D/O.LATE T.N.SUBBARAMA IYER, 4 E, MULTICORNER APARTMENTS, 5TH CROSS, BASVESWARA LAYOUT, NAGASHETTY HALLI, BANGALORE - 560 094. 6 GEETHA NARAYANAN, AGED 72 YEARS W/O.LATE T.S.NARAYANAN, F-1, MARUTHAM SQUARE, RAMALINGA NAGAR, 2ND CROSS ROAD, K.K.PUDUR, CBE-641 _**OP(C).1907/19**_ 2 038. 7 PREMA SHEKAR, AGED 48 YEARS D/O.LATE T.S.NARAYANAN, 225, WHITES HILL AVENUE, MARKAM, ONTARIO L 6 B1 K 6, CANADA REP. B HER PA HOLDER GEETHA NARAYANAN. 8 MAHESH NARAYANAN, AGED 43 YEARS S/O.LATE T.S.NARAYANAN, F-1, MARUTHAM SQUARE, RAMALINGA NAGAR, 2ND CROSS ROAD, K.K.PUDUR, CBE-641 038, REP. BY HER PA HOLDER GEETHA NARAYANAN. 9 SMT.LAKSHMI PADMANABHAN, AGED 68 YEARS W/O.LATE T.S.POADMANABHAN, SHANTI, THAMARACHIRA ROAD, CHITTUR VILLAGE AND TALUK, PALAKKAD DISTRICT - 678 101. 10 C.P.SUBBARAMAN, AGED 47 YEARS S/O.LATE T.S.PADMANABHAN, 5037, 326TH PLACE NE, CARNATION, W.A.98014, USA REP. BY HIS PA HOLDER LAKSHMI PADMANABHAN. 11 T.P.KRISHNAN, AGED 40 YEARS S/O.LATE T.S.PADMANABHAN, 116, BLACKWOOD CLEMENTON ROAD, APT L 505, CLEMENTON, N J 08021, U S A REP. BY HIS PA HOLDER LAKSHMI PADMANABHAN. 12 P.R.VENKATESWARAN, AGED 67 YEARS S/O.LATE P.V.RAMACHANDRA IYYER, NO.124-A, 5TH CROSS ROAD, N T I LAYOUT, VIDYARANYAPURA, BANGALORE - 560 097, REP. BY HER PA HOLDER T.S.RADHA. 13 V.SREERAM, AGED 36 YEARS S/O.O.R.VENKATESWARAN AND S/O.LATE T.S.GEETHA, NO.124-A, 5TH CROSS ROAD, N T I LAYOUT, VIDYARANAYAPURA, BANGALORE - 560 097, REP. BY HER PA HOLDER T.S.RADHA. 14 V.SREEKRISHNA, _**OP(C).1907/19**_ 3 AGED 36 YEARS S/O.P.R.VENKATESWARAN AND S/O.LATE T.S.GEETHA, NO.124-A, 5TH CROSS ROAD, N T I LAYOUT, VIDYARANYAPURA, BANGALORE -560 097, REP. BY HER PA HOLDER T.S.RADHA. 15 KARTHIK RAMAN, AGED 48 YEARS S/O.LATE T.S.RAMAN, B-903, TWIN TOWERS, NEAR WIRELESS COLONY, AUNDH, PUNE - 411007, REP. BY HER PA HOLDER T.S.RADHA. 16 SOWMYA VENKITESWARAN, AGED 50 YEARS D/O.LATE RAMAN, B-903, TWIN TOWERS, NEAR WIRELESS COLONY, AUNDH, PUNE- 411 007, REP. BY HER PA HOLDER T.S.RADHA. BY ADVS. LATHA ANAND SRI.S.VISHNU (ARIKKATTIL) SRI.RADHAKRISHNA PILLAI B SHRI.SIDHARTH P.S. SRI.SAJIKUMAR.K.K. ## **RESPONDENT/S:** 1 HINDUSTAN PETROLEUM CORPORATION LIMITED, HAVING ITS REGISTERED OFFICE AT 17TH JAMSHEDJI TATA ROAD, MIMBAI - 400 020, HAVING ITS REGIONAL OFFICE AT TATAPURAM P.O., ERNAKULAM, ERNAKULAM VILLAGE, KANAYANNUR TALUK, PIN - 682 014, REPRESENTED BY ITS MANAGING DIRECTOR. 2 SENIOR REGIONAL MANAGER, HINDUSTAN PETROLEUM CORPORATION LIMITED, TATA ROAD, TATAPURAM P.O., ERNAKULAM, ERNAKULAM VILLAGE, KANAYANNUR TALUK, PIN - 682 014. 3 M/S.KUNNATHUPARAMBIL, DEALER OF HINDUSTAN PETROLEUM CORPORATION LIMITED, REPRESENTED BY K.S.AUGUSTINE AND K.S.BENEDICT SERAPHINE, (EXP. LIE NO.P/SC/KL/14/1036(P-18 2978), OPP. MAHARAJAS COLLEGE GROUND (NORTH OF KRISHNA HOSPITAL BUILDING), M.G.ROAD, ERNAKULAM, ERNAKULAM _**OP(C).1907/19**_ 4 VILLAGE, KANAYANNUR TALUK, PIN - 682 011. BY ADVS. R1 AND R2 BY SRI.M.GOPIKRISHNAN NAMBIAR SRI.K.JOHN MATHAI SRI.JOSON MANAVALAN SRI.KURYAN THOMAS SRI.PAULOSE C. ABRAHAM CHETHAN KRISHNA R. THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 24.8.2021, THE COURT ON 29.11.2021 DELIVERED THE FOLLOWING: _**OP(C).1907/19**_ 5 ## **V.G.ARUN, J.** **----------------------------------------------O.P(C).No. 1907 of 2019 ----------------------------------------------Dated this the 29[th] day of November, 2021** ## **JUDGMENT** The petitioners are the plaintiffs in O.S.No.73 of 2017 on the files of the First Additional Sub Court, Ernakulam. The averments in the plaint are to the following effect; The predecessor of the plaintiffs had leased out the plaint schedule property to the Standard Vacuum Oil Company in the year 1961, for operating a petroleum retail outlet. Standard Vacuum Oil Company was later taken over by Standard Eastern Inc. and thereafter, by the 1[st] respondent. Though the 1[st] respondent got the lease deed renewed, the rent, which was originally fixed at Rs.170/-, was not enhanced. Therefore, the predecessor of the plaintiffs approached the Land Tribunal seeking enhancement of rent and got the rent refixed at Rs.1,105/-. That order was affirmed by the Land Reforms Appellate Authority and the High Court. As a result, respondents are occupying the plaint schedule property on a meagre rent of Rs.1,105/-. The repeated requests of the petitioners for enhancing the rent and executing a fresh lease agreement having fallen on deaf ears, the suit was filed seeking the following reliefs; _**OP(C).1907/19**_ 6 “i. to fix proper rent, use and occupational charges and damages for the leased premises at the rate of Rs.6,63,000/per month with periodical enhancement and for realisation of Rs.2,32,05,000/- towards rent use and occupational charges and damages. ii. to direct the defendants or persons claiming under them to surrender vacant possession of plaint schedule property after demolishing all structures put up by them in the property. 2. In their written statement, defendants 1 and 2 submitted that the plaint schedule property was taken on lease by its predecessor Company in the year 1961 for commercial purpose. Accordingly, defendants constructed buildings in the property and have been running a petroleum retail outlet. Being a commercial lease, the landlord cannot evict the lessee from the premises in view of the protection under Section 106 of the Land Reforms Act, 1963 ('the Act', for short). Moreover, defendants are paying the enhanced rent without default. More importantly, jurisdiction of the civil courts is barred under Section 125 of the Act and the remedy available to the petitioners is to approach the Land Tribunal for enhancement of rent. 3. Based on the pleadings, the trial court framed issues. The first issue being the civil court's jurisdiction to try the case. After elaborate consideration, that issue was answered against the petitioners, finding that the civil court has no jurisdiction and the _**OP(C).1907/19**_ 7 remedy of the petitioners is to approach the Land Tribunal. Even though the other issues were found in the petitioners’ favour, the suit was dismissed based on the finding on the first issue. Hence, the original petition. 4. Heard Sri.K.Anand, learned Senior Counsel appearing for the petitioners and Sri.Chethan Krishna R., learned counsel for respondents 1 and 2. 5. Learned Senior Counsel contended that the court below committed a gross illegality in holding the suit to be not maintainable in view of the statutory remedy under Section 106 of the Land Reforms Act. It is contended that the question of tenancy having arisen for consideration, the court below ought to have referred that question to the Land Tribunal under Section 125(3), rather than non-suiting the petitioners. It is argued that if a suit suit is found to be not maintainable for want of jurisdiction, the plaint should be returned for presentation before the proper court, as provided under Order VII Rule 10 of CPC. To buttress the argument, reliance is placed on the decisions in _**Athmanathaswami Devasthanam v. K.Gopalaswami Aiyangar**_ [AIR 1965 SC 338], _**Catholic Laymen’s Association v. Synod of Bishops**_ [MANU/KE/0488/2001] and _**State Bank of India v. Ramakrishnan Babu and Others**_ [2015 (4) KLJ 525]. It is submitted that the petitioners had paid about Rs.10 lakhs as court fees and for resorting to the appellate remedy petitioners will have to pay the court fees again. It is contended that the availability of _**OP(C).1907/19**_ 8 appellate remedy does not interdict this court from exercising the supervisory power under Article 227 of the Constitution of India. 6. Learned counsel for the respondent contended that, in purported exercise of supervisory power under Article 227, the High Court cannot act as an Appellate Court and at any rate, the power of superintendence cannot be invoked to avoid payment of court fees. To buttress the contention, reliance is placed on the decisions in _**Sadhana Lodh v. National Insurance Co. Ltd.**_ [2003(3) SCC 524], _**Seth Chand Ratan v. Pandit Durga Prasad** (D) by LRs._ [2003 5 SCC 399] and _**State Through Special Cell, New Delhi v. Navjot Sandhu**_ [(2003) 6 SCC 641]. The recent decision of the Supreme Court in _**V H N D P Sabai v. Tuticorin Educational Society**_ [(2019) 9 SCC 538] is pressed into service to contend that, as far as suits and proceedings before civil courts are concerned, availability of remedy under the Code of Civil Procedure is a near total bar to the exercise of supervisory jurisdiction under Article 227. Referring to Order VII Rule 10, it is contended that the plaint can be returned only in case of lack of territorial or pecuniary jurisdiction and not in case of statutory bar of jurisdiction. In support of this proposition, reliance is placed on the decision of the Calcutta High Court in _**Allahabad Bank v. Shank’s (Steel Fab Pvt. Ltd.)**_ [AIR 2008 Cal.96] _**.**_ Alternatively, it is contended that even if the plaint is to be returned, that can only be for presentation before another 'court' and not before another 'forum' like the Land Tribunal, as held by the Division Bench of this Court in _**OP(C).1907/19**_ 9 ## _**Rimialvi v. Kerala State Co-operative Bank**_ [2013 (3) KLT 769]. 7. In his reply, learned Senior Counsel submitted that the finding in _**Rimialvi**_ is rendered _per incuriam,_ since the dictum laid down by the Honourable Supreme Court in _**Athmanathaswami Devasthanam**_ , followed by this court in _**Catholic Laymen’s Association**_ was taken into _consideration._ 8. The challenge in this original petition being against a judgment and decree, the first question to be considered is the maintainability of the original petition. As per Section 96 of CPC, save were otherwise expressly provided in the Code or by any other law for the time being in force, an appeal will lie from every decree passed by any court exercising original jurisdiction, to the court authorised to hear appeals from the decisions of such court. In _**State Through Special Cell**_ (supra) it is held that the jurisdiction under Article 227 is not to be exercised ‘as the cloak of an appeal in disguise’. In _**Seth Chand Ratan**_ it was held that when a party has a statutory remedy of assailing the order in appeal, he should not be allowed to bypass that remedy and take recourse to proceedings under Articles 226 or 227, enabling him to defeat the provisions of the Statutes which may provide for certain conditions for filing appeal, like limitation, payment of court fee, or deposit of some amount or fulfillment of some other conditions for entertaining the appeal. The Apex Court has time and again cautioned the High Courts that the power of superintendence under Article 227 should be exercised sparingly, to keep the subordinate _**OP(C).1907/19**_ 10 courts and Tribunals within the bounds of their authority and not to correct mere errors. In _**V H N D P Sabai**_ (supra), the position has been further clarified by holding that in respect of suits and other proceedings before civil courts, availability of an appellate remedy in terms of the provisions of CPC may have to be construed as a near total bar. It was further held that, when the proceedings are under the Code of Civil Procedure and the forum is the civil court, availability of a remedy under the CPC should deter the High Court from exercising its power of superintendence, not merely as a measure of self imposed restriction, but as a matter of discipline and prudence. The legal position having thus been succinctly laid down, I find the objection regarding maintainability to be well founded. 9. As regards the contention that the trial court ought to have referred the question of tenancy to the Land Tribunal, rather than dismissing the suit, the answer lies in the settled legal position that reference under Section 125(3) is warranted only when the question of tenancy actually arises for consideration. Herein, the lease in question being a commercial lease, the predecessor of the petitioners had resorted to the remedy under Section 106 of the Land Reforms Act. That proceedings having attained finality, the question of tenancy cannot arise for consideration in the subsequent litigations. 10. According to the Senior Counsel, trial court committed a gross jurisdictional error by dismissing the suit, instead of returning _**OP(C).1907/19**_ 11 the plaint. In this regard, it may be worthwhile to consider Order VII Rule 10 of CPC, which empowers the courts to return the plaint at any stage of the suit for presentation to the court in which the suit should have been instituted. In _**Rimialvi,**_ this Court held that the words, ‘courts’, ‘suits’ and ‘plaint’ in Order VII Rule 10 CPC do not provide any room to devise a mechanism to return the plaint for its presentation before any other 'forum', on finding the suit to be barred by a provision of law. In such a situation, courts have to decide the question on merits, whether it be on the ground of jurisdiction or maintainability. An argument was put forth that, in _**Rimialvi**_ , the Division Bench rendered its decision without considering the dictum in _**Athmanathaswami,**_ wherein it was held that, when the court had no jurisdiction over the subject matter of the suit, it cannot decide any question on merits and is bound to return the plaint. The distinction attempted to be drawn is not relevant as far as the case at hand is concerned, since the trial court had found that the remedy available to the petitioners is to approach the Land Tribunal under Section 106 of the Land Reforms Act. The Tribunal not being a court, the plaint could not have been returned under Order VII Rule 10. Hence, the trial court had no alternative but to decide the other issues also. 11. Yet another question to be considered is whether the plaint can be returned under Order VII Rule 10 only when there is lack of territorial or pecuniary jurisdiction and whether such power can be exercised even where the court finds that it lacks _**OP(C).1907/19**_ 12 ## jurisdiction over the subject matter of the suit. Dilating on the question, this court in _**Ramakrishnan Babu**_ (supra) held as under; _“4. I shall first deal with the question whether return of plaint could be only on the ground of lack of territorial or pecuniary jurisdiction. Rule 10 of Order VII of the Code of Civil Procedure provides that the plaint shall at any stage of the suit be returned to be presented to the court in which the suit should have been instituted. The Rule does not restrict the return of plaint only to a case of lack of pecuniary or territorial jurisdiction. No distinction is made under Rule 10 of Order VII of the Code of Civil Procedure between jurisdiction over the subject matter and the territorial and pecuniary jurisdiction. On a plain reading of Rule 10 of Order VII of the Code of Civil Procedure, it would cover even cases where the Court lacks jurisdiction over the subject matter of the suit. There is nothing in Rule 10 to indicate that in a case where the court lacks jurisdiction over the subject matter, a return of the plaint cannot be had. In Athmanathaswami Devasthanam v. K.Gopalaswami Ayyangar, MANU/SC/0236/1963 : AIR 1965 SC 338, the Supreme Court held that when the court had no jurisdiction over the subject matter of the suit, it cannot decide any question on merits. It can only decide on the question of jurisdiction and if it comes to the conclusion that it has no jurisdiction over the matter, the court was bound to return the plaint.”_ A contrary view is expressed by the High Court of Bombay in _**Chandra Prem Shah and Others v. K.Raheja Universal Pvt.**_ _**Ltd.**_ [MANU/MH/0116/2015]. I am not venturing to decode upon the correctness of the divergent views expressed by different courts, _**OP(C).1907/19**_ 13 since such exercise can be undertaken in an appropriate case and not in a case where the petitioners seek invocation of the power under Article 227, by circumventing the appellate remedy. In the result, the original petition is dismissed, without prejudice to the petitioner’s right to seek appropriate remedy. **Sd/-** **V.G.ARUN, JUDGE** _vgs_ _**OP(C).1907/19**_ 14 ## **APPENDIX OF OP(C) 1907/2019** PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE NOTARISED POWER OF ATTORNEY DATED 10/03/2017. - EXHIBIT P2 TRUE COPY OF THE NOTARISED POWER OF ATTORNEY DATED 14/03/2017. - EXHIBIT P3 - TRUE COPY OF THE REGISTERED POWER OF ATTORNEY NO.148/2015 DATED 25/09/2015. - EXHIBIT P4 TRUE COPY OF THE REGISTERED POWER OF ATTORNEY NO.81/1991 DATED 26/07/1991. - EXHIBIT P5 - TRUE COPY OF THE NOTARIZED POWER OF ATTORNEY DATED 28/04/2004. EXHIBIT P6 TRUE COPY OF THE NOTARISED POWER OF ATTORNEY DATED 03/06/2019. EXHIBIT P7 TRUE COPY OF THE PLAINT IN OS 73 OF 2017 ON THE FILES OF THE 1ST ADDITIONAL SUBORDINATE COURT, ERNAKULAM. EXHIBIT P8 TRUE COPY OF THE WRITTEN STATEMENT FILED BY DEFENDANTS 1 AND 2 IN OS NO.73 OF 2017. - EXHIBIT P9 TRUE COPY OF THE JUDGMENT IN OS NO.73 OF 2017 IN THE FILES OF THE 1ST ADDITIONAL SUB JUDGE, ERNAKULAM. EXHIBIT P10 TRUE COPY OF THE DECREE IN OS NO.73 OF 2017 IN THE FILES OF THE 1ST ADDITIONAL SUB JUDGE, ERNAKULAM.