Varghese v. Joseph (deceased) and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 30TH DAY OF OCTOBER 2017/8TH KARTHIKA, 1939** ## **OP(C).No. 627 of 2017 ()** **------------------------E.P.NO.39/2013 IN OS.NO.681/1989 OF PRICIPAL SUB COURT, KOTTAYAM ------------------** ## **PETITIONER :** **---------------------** **VARGHESE, AGED 64 YEARS, S/O OUSEPH, PAARATHAZHATHU, KAPIKAD KARA, KADUTHURUTHY, KOTTAYAM DISTRICT.** **BY ADVS.SRI.E.N.VISHNU NAMBOODIRI SRI.M.K.SASEENDRAN (MELEL) SRI.P.P.NARAYANAN** **RESPONDENT(S):** **----------------------------** **1. JOSEPH (DIED), PINAL HOUSE, ATHIRAMPUZHA P.O, KOTTAYAM DISTRICT-686 562.** ## **2. ANI, W/O JOY,** **OTTATHENGUMGAL, 14, CHITTATHUKARA, THRIKKAKARA PANCHAYAT, KANAYANNUR TALUK, ERNAKULAM DISTRICT. PIN-682 028.** **3. BIBIN JOSEH, S/O JOSEPH, PINAL HOUSE, ATHIRAMPUZHA P.O, KOTTAYAM DISTRICT- 686 562.** ## **4. BABITHA, D/O JOSEPH,** **PINAL HOUSE, ATHIRAMPUZHA P.O, KOTTAYAM DISTRICT-686 562.** **R2 BY ADV. SMT.SHYLAJA VARGHESE R3 BY ADVS. SRI.S.VISHNU (ARIKKATTIL) SRI.M.JAYAKRISHNAN** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 30-10-2017, ALONG WITH OP(C) NO.3107 OF 2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** **OP(C).No. 627 of 2017 () -----------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** ## **---------------------------------------** - **EXHIBIT P1 TRUE COPY OF THE EXECUTION PETITION NO.39/2013 OF SUB COURT, KOTTAYAM DATED 31.1.2013.** - **EXHIBIT P2 TRUE COPY OF THE COUNTER AFFIDAVIT OF THE ABOVE PETITION IN THE ABOVE E.P DATED 1.10.2013.** - **EXHIBIT P3 TRUE COPY OF THE JUDGMENT OF KOTTAYAM SUB COURT IN O.S NO.681/1990 DATED 19.11.1993.** - **EXHIBIT P4 TRUE COPY OF THE APPEAL MEMORANDUM DATED 18.12.1994 BEFORE THIS HONOURABLE COURT.** - **EXHIBIT P5 TRUE COPY OF THE AGREEMENT DATED 21.10.2009.** - **EXHIBIT P6 TRUE COPY OF THE JUDGMENT DATED 9.12.2016 IN M.J.C NO.167/2016 OF THIS HONOURABLE COURT.** - **EXHIBIT P7 TRUE COPY OF THE IA.NO.499/2016 IN O.S NO.681/1990 DATED 18.3.2016 BEFORE THE SUB COURT, KOTTAYAM.** - **EXHIBIT P8 TRUE COPY OF THE APPLICATION DATED 23.9.2016 BEFORE THE SUB COURT, KOTTAYAM.** - **EXHIBIT P9 TRUE COPY OF THE ORDER DATED 7.11.2016 IN E.A NO.155/2016 IN E.P NO.39/2013 IN O.S NO. 681/1898 OF THE HON'BLE PRINCIPAL SUB JUDGE, KOTTAYAM.** - **EXHIBIT P10 TRUE COPY OF THE SALE DEED DATED 13.12.2016 BEARING NO. 1461/2016 OF KADUTHURUTHY SUB REGISTRY.** - **EXHIBIT P11 TRUE COPY OF THE ORDER DATED 14.12.2016 IN E. P NO. 39/2013 IN O.S NO. 681/1989 OF HON'BLE PRINCIPAL SUB JUDGE, KOTTAYAM.** - **EXHIBIT P12 TRUE COPY OF THE PETITION BEARING E.A NO.201 OF 2015 DATED 2.7.2015 BEFORE THE SUB COURT, KOTTAYAM.** **RESPONDENT(S)' EXHIBITS:** **NIL** **-----------------------------------------** **/TRUE COPY/** **P.A.TO JUDGE** **sts** ## **ANIL K.NARENDRAN, J. ----------------------------------------------O.P.(C)Nos.627 and 3107 of 2017 -----------------------------------------------** Dated this the 30[th] day of October, 2017 ## **J U D G M E N T** O.P.(C)No.627/2017:- The petitioner, who is the judgment debtor in E.P.No.39/2013 in O.S.No.681/1989 on the file of Principal Sub Court, Kottayam, is before this Court in this original petition filed under Article 227 of the Constitution of India seeking the following reliefs; - “(i) Declare that Exhibit P10 sale deed is not having any legal effect and that will not effect (sic: affect) the property covered by the said document in any way and to quash it; - (ii) Direct the Sub Court, Kottayam not to entertain any execution petition regarding the property covered by Exhibit P10 and Exhibit P3 until I.A.No.499/2016 of Kottayam Sub Court is finally decided; - (iii) Direct the Sub Court, Kottayam to allow the petitioner to adduce evidence on behalf of him in E.P.No.39/2013 to prove the settlement of the matter and execution of Exhibit P5 document and transaction mentioned in it if this Honourable Court finds that E.P.No.39/2013 is maintainable under O.P.(C)Nos.627 and 3107 of 2017 :-2-: Section 47 of Civil Procedure Code” 2. O.P.(C)No.627/2017 was not originally numbered by the Registry raising certain defects noted as to its maintainability. Later, by the order dated 17.2.2017, the Registry was directed to number the original petition, subject to satisfaction of maintainability on the judicial side. On 20.2.2017, this Court issued urgent notice by speed post to the respondents and the original petition was ordered to be listed after service of notice. 3. The 1[st] respondent in this original petition, who is the plaintiff in O.S.No.681/1989, died subsequent to the decree. The 2[nd] respondent is his widow. 3[rd] and 4[th] respondents are the children of deceased 1[st] respondent, who are the decree holders in E.P.No.39/2013 in O.S.No.681/1989. 4. The 2[nd] and 3[rd] respondents in O.P.(C)No.627/2017 have entered appearance through counsel. Service of notice to 4[th] respondent, who is the sibling of 3[rd] respondent, is dispensed with, considering the fact that 3[rd] respondent decree holder is O.P.(C)Nos.627 and 3107 of 2017 :-3-: represented by counsel. 5. O.P.(C)No.3107 of 2017:- During the pendency of O.P.(C)No.627/2017, the petitioner/judgment debtor has filed this original petition under Article 227 of the Constitution of India seeking the following reliefs; - “(i) Call for the records relating to the case; - (ii) Direct the lower court to set aside Exhibits P9, P12 and P13 orders; - (iii) Direct the lower court to re-consider Exhibits P7, P10 and P11 on merits” 6. The 2[nd] and 3[rd] respondents in O.P.(C)No.3107 of 2017 are represented by the respective counsel, who filed vakalath on their behalf in the connected case, i.e., O.P.(C) No.627/2017. Service of notice to 4[th] respondent, who is the sibling of 3[rd] respondent, is dispensed with, considering the fact that 3[rd] respondent decree holder is represented by counsel. 7. Heard the learned counsel for the petitioner/judgment debtor, the learned counsel for the 2[nd] respondent and also the learned counsel for the 3[rd] respondent, who is one of the decree holders in E.P.No.39/2013 in O.S.No.681/1989. O.P.(C)Nos.627 and 3107 of 2017 :-4-: 8. O.P.(C)No.3107/2017:- In this original petition, the petitioner is seeking an order to set aside Exts.P9, P12 and P13 orders dated 15.11.2016 passed by the Principal Sub Court, Kottayam, whereby Exts.P7, P10 and P11 interlocutory applications filed by the petitioner stand dismissed for default. The petitioner had moved those applications seeking the following reliefs; - “(i) I.A.No.499/2016:- to rescind the alleged contract entered into between the petitioner and the deceased plaintiff; - (ii) I.A.No.500/2016:- to implead the legal heirs of the deceased plaintiff as supplemental plaintiffs 2 to 4 in the suit; and - (iii) I.A.No.501/2016:- to reopen the evidence in the suit.” 9. On 15.11.2016, when those interlocutory applications were listed before the Principal Sub Court, Kottayam, there was no representation for the petitioner. Accordingly, Exts.P7, P10 and P11 interlocutory applications were dismissed for default by Exts.P9, P12 and P13 orders. 10. In **Shalini Shyam Shetty v. Rajendra Shankar** O.P.(C)Nos.627 and 3107 of 2017 :-5-: **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. 11. 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 O.P.(C)Nos.627 and 3107 of 2017 :-6-: 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 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. O.P.(C)Nos.627 and 3107 of 2017 :-7-: 12. In the instant case, the court below dismissed Exts.P7, P10 and P11 interlocutory applications for default on 15.11.2016, by Exts.P9, P12 and P13 orders, since there was no representation for the petitioner. The correctional jurisdiction under Article 227 of the Constitution of India can be exercised only in cases where orders have been passed by subordinate courts as well as statutory or quasi judicial tribunals in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice. Once the fact that there was no representation for the petitioner on 15.11.2016, when Exts.P7, P10 and P11 interlocutory applications were listed for consideration, is not in dispute, the remedy open to the petitioner is to file applications for restoration of those interlocutory applications, under Order IX Rule 9 of the Code of Civil Procedure, 1908. At any rate, Exts.P9, P12 and P13 orders of the court below dismissing Exts.P7, P10 and P11 interlocutory applications for default, since there was no representation for the petitioner on 15.11.2016, cannot be termed as orders passed in grave dereliction of duty or in O.P.(C)Nos.627 and 3107 of 2017 :-8-: flagrant abuse of fundamental principles of law or justice, warranting interference of this Court under Article 227 of the Constitution of India. 13. In the result, **O.P.(C)No.3107 of 2017** filed before this Court on **24.10.2017** by the petitioner, who is the judgment debtor in E.P.No.39/2013 in O.S.No.681/1989 on the file of Principal Sub Court, Kottayam challenging Exts.P9, P12 and P13 orders of the said court dated **15.11.2016** , is dismissed as not maintainable, without prejudice to the right of the petitioner to move that court below for restoration of Exts.P7, P10 and P11 interlocutory applications, under Order IX Rule 9 of the Code of Civil Procedure, 1908, in accordance with law. 14. O.P.(C)No.627/2017:- In this original petition the first relief sought for is a declaration that Ext.P10 sale deed bearing No.1461/2016 of S.R.O., Kadathuruthy is not having any legal effect and that, the said document have no effect on the property covered by it. Therefore, the petitioner is seeking an order to quash Ext.P10 sale deed. Ext.P10 is a sale deed executed on 13.12.2016 through court, in execution of the decree in O.S.No.681/1989 on the file of O.P.(C)Nos.627 and 3107 of 2017 :-9-: Principal Sub Court, Kottayam. 15. In **Jacky v. Tiny @ Antony [(2014) 6 SCC 508]** the Apex Court held that the High Court under Article 227 of the Constitution of India 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. 16. Therefore, the jurisdiction of this Court under Article 227 of the Constitution of India is supervisory in nature. The said jurisdiction can be exercised in appropriate cases 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. Such supervisory jurisdiction cannot be invoked for declaratory relief, as sought for in O.P.(C) No.627/2017, as to the validity or legal effect of Ext.P10 sale deed executed through court, in execution of the decree in O.S.No.681/1989. 17. The further reliefs sought for in O.P.(C)No.627/2017, O.P.(C)Nos.627 and 3107 of 2017 :-10-: i.e., relief Nos.(ii) and (iii) extracted hereinbefore at the first paragraph has become infructuous in view of the dismissal of Exts.P7, P10 and P11 interlocutory applications by Exts.P9, P12 and P13 orders dated 15.11.2016 of the Principal Sub Court, Kottayam, for default. 18. In the result, **O.P.(C)No.627/2017** also fails and the same is, accordingly, dismissed. All pending interlocutory applications in both original petitions are closed. Sd/- **ANIL K. NARENDRAN JUDGE** ami/ //True copy// P.A.to Judge