Unikkal Udayabhanu v. Seema V and Smitha Vipin

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY, THE 29TH DAY OF NOVEMBER 2017/8TH AGRAHAYANA, 1939** **OP(C).No. 3109 of 2017 (O)** **--------------------------------------** **C.M.A.NO. 13/2016 OF THE DISTRICT COURT, MANJERI** **I.A.NO. 3374/2010 IN O.S.NO. 241/2010 OF THE SUB COURT, TIRUR** **-------------------** **PETITIONER(S)/APPELLANT/PETITIONER/PLAINTIFF : -------------------------------------------------------------------------------** **UNIKKAL UDAYABHANU, S/O. RAMACHANDRAN, AGED 63 YRS, UNIKKAL HOUSE, PARIYAPURAM AMSOM DESOM, P.O. NEDUVA, TIRURANGADI TALUK, MALAPPURAM DISTRICT.** **BY SRI.T.KRISHNANUNNI (SENIOR ADVOCATE) ADV. SRI.C.M.MOHAMMED IQUABAL** ## **RESPONDENT(S)/RESPONDENTS/RESPONDENTS/SUPPLEMENTAL DEFENDANTS :** - **-------------------------------------------------------------------------------------------------------** **1. SEEMA.V, W/O. SYAMSUNDAR, CHOODIKOTTA P.O, PUTHUCHERI, MAHE, PIN-673 310.** **2. SMITHA VIPIN, W/O. VIPIN, 'GOVINDAM', NEAR GOVERNMENT HIGHER SECONDARY SCHOOL, AZHIYUR P.O, VADAKARA TALUK, KOZHIKODE DISTRICT, PIN-673 309.** **BY ADVS. SRI.B.KRISHNAN SRI.R.PARTHASARATHY** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 29-11-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Msd.** **OP(C).No. 3109 of 2017 (O)** **---------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS :** - **EXHIBIT P1 THE TRUE COPY OF I.A.3374/2010 IN O.S.NO.241/2010 OF THE SUB COURT, TIRUR DATED 17.8.2010.** - **EXHIBIT P2 THE TRUE COPY OF THE COUNTER IN I.A.NO.3374/2010 IN O.S.NO.241/2010 OF THE SUB COURT, TIRUR DATED 14.3.2011.** - **EXHIBIT P3 THE TRUE COPY OF THE ORDER IN I.A.3374/10 IN O.S.241/2010 OF THE SUB COURT, TIRUR DATED 4.8.2016.** - **EXHIBIT P4 THE TRUE COPY OF THE JUDGMENT IN C.M.A.NO.13/2016 OF THE DISTRICT COURT, MANJERI DATED 16.9.2017.** ## **RESPONDENT(S)' EXHIBITS :** ## **NIL** ## **//TRUE COPY//** **P.S.TO JUDGE.** **Msd.** ## **ANIL K.NARENDRAN, J.** ## **--------------------------------------O.P.(C).No.3109 of 2017 ---------------------------------------Dated this the 29[th] day of November, 2017** ## **J U D G M E N T** The petitioner, who is the plaintiff in O.S.No.241 of 2010 on the file of the Sub Court, Tirur and the appellant in C.M.A.No.13 of 2016 on the file of the District Court, Manjeri, has filed this Original Petition under Article 227 of the Constitution of India, seeking an order to set aside Ext.P4 judgment dated 16.09.2017 of the lower appellate Court in C.M.A.No.13 of 2016, wherein the challenge made by the petitioner/plaintiff against Ext.P3 order dated 04.08.2016 in I.A.No.3374 of 2010 in O.S.No.241 of 2010 stands rejected. 2. Heard the learned counsel for the petitioner/plaintiff and also the learned counsel for the respondents/supplemental defendants. 3. The sole issue that arises for consideration in this Original Petition is as to whether interference is warranted on Ext.P4 order of the lower appellate court in C.M.A.No.13 of 2016, whereby, the challenge made by the petitioner/plaintiff against Ext.P3 order of the trial court in I.A.No.3374 of 2010 stands repelled. 4. I.A.No.3374 of 2010 is an interlocutory application filed by the petitioner/plaintiff under Order XXXIX Rule 1 of the Code of Civil Procedure, 1908, seeking an interim injunction restraining respondents/defendants from trespassing into the plaint B schedule O.P.(C).No.3109 of 2017 2 property or taking possession of the property. In the aforesaid interlocutory application, after considering the rival contentions, the trial court passed Ext.P4 order. The reasoning of the trial court as contained in paragraphs 11 and 12 reads thus : _“11. As stated earlier I perused the records in E.P.17/08 in O.S.44/73 to understand the actual state of affairs. From the records in execution petition, it is seen that Amin reported about the mistake in Amsom Desom, when he was deputed for effecting delivery. Therefore, this court called for a report from the Tahsildar and he submitted a report to the effect that the property is situated in Pariyapuram Amsom and Desom in Parappanangadi Village, Tirurangadi Taluk. In view of the report of Tahsildar the first respondent in this application who is the petitioner in E.P.17/08, filed E.A.269/09 for correcting the Amsom Desom of the property shown in the Execution Petition. The present petitioner opposed that application. But the Executing Court overruled his objections and allowed the application for amending the execution petition. The present petitioner challenged the order of this court before Honourable High Court of Kerala by filing W.P.(C) No.7859/10. The Honourable High Court passed a common judgment in W.P.(C).No.5068/10 and W.P(c)No.7859/10 and dismissed the writ petitions on 30-6-2010. The petitioner filed a review petition for reviewing the judgment of the Honourable High Court; but that review petition was also dismissed. After the dismissal of the review Petition on 306-2010, present petitioner filed this suit and petition on 188-2010. It is also pertinent to note that without pressing for an order in this application, petitioner filed E.P.523/2010 in_ O.P.(C).No.3109 of 2017 3 _E.P.17/2008 on 20.8.2010 for staying the execution proceedings till the disposal of this suit. The said application was dismissed by this court and that order was challenged by the petitioner before Honourable High Court of Kerala by filing O.P.(C)No.171/14. The Honourable High Court dismissed that application and directed the Executing Court to proceed with the execution. In that judgment the Honourable High Court held that item No.8 of the schedule to the final decree in O.S.No.44/73 and the subject matter in O.S.241/10 are one and the same._ _12. Now the contention of the petitioner is that in O.S.196/10 this court granted a decree to the effect that the petitioner is the absolute owner of plaint A schedule property and hence this court can not go behind, from that finding. To prove that aspect petitioner produced the certified copy of the judgment and decree in O.S.196/10 and they are marked as Ext.A3 and A4. It is true that the Ext.A3 decree shows that the relief is granted by this court for plaint A schedule property. But it is to be noted that the defendant in that suit was exparte and therefore this court was not in a position to know the other steps taken by the petitioner in that suit. The contention of the plaintiff in O.S.196/10 is that the plaint schedule property in that suit is not included in O.S.44/73. To prove that aspects the plaintiff produced the copy of the plaint judgment and decree in O.S.44/73 in that suit. But from the discussion made in this order it is revealed that the amsom desom and village was mistakenly shown in the plaint and decree in O.S.44/73 and it was corrected only in the execution petition. These facts were not before this court while considering the suit O.S.196/2010. Moreover the present respondents are not parties to that suit. Therefore the_ O.P.(C).No.3109 of 2017 4 _documents produced by the petitioner has not made out a prima facie case. The present attempt of the petitioner is to indirectly obtain a stay of proceedings in E.P.17/08 when that relief was rejected by executing court and confirmed by Honourable High Court. The Honourable High Court already held in O.P.(C).No.171/14 that the attempt of the petitioner is only to delay the execution of final decree for partition which was passed in O.S.44/73 on 7-10-2003. It is also pertinent to note that the plaintiff has not challenged the decree in O.S.44/73 till this date.”_ (underline supplied) 5. Feeling aggrieved by Ext.P3 order in I.A.No.3374 of 2010 in O.S.No.241 of 2010, the petitioner/plaintiff filed C.M.A.No.13 of 2016 before the District Court, Manjeri. After considering the rival contentions and taking note of the fact that the property has already been delivered by process of court to the respondents/supplemental defendants, the lower appellate court dismissed the said appeal by Ext.P4 judgment. ## 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 5 O.P.(C).No.3109 of 2017 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 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 lower appellate court in Ext.P4 judgment while affirming Ext.P3 order of the trial court cannot be termed either perverse or patently illegal, warranting an interference under Article 227 of the Constitution of India. In the O.P.(C).No.3109 of 2017 6 result, this Original Petition fails and the same is accordingly, dismissed. It is made clear that the observations contained in Ext.P4 order, which is under challenge in this Original Petition, are made for the limited purpose of considering the challenge made by the petitioner/plaintiff against Ext.P3 order of the trial court in I.A.No.3374 of 2010. Therefore, the trial court shall proceed with the suit, untrammeled by any observations contained in Ext.P4 judgment. Sd/- **ANIL K.NARENDRAN JUDGE** AV