High Court of KeralaSingle JudgePetition disposed of: Original petition dismissed

VATTOLI SATHYABHAMA and others v. VALAPPIL THANIKKUNNATH MADHAVI

Case / Petition Number:OP(C) No.1570 of 2023
Neutral Citation:/

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • C.S. Dias
Judgment Date
2023-08-02
Court Decision / Holding
OP(C) No.1570 of 2023 dismissed; Ext P7 order upheld; no interference under Article 227; the petition is devoid of merits.
Final Disposition
Petition disposed of: Original petition dismissed

Parties to the Case

Appellants / Petitioners

  • VATTOLI SATHYABHAMA
  • VATTOLI PRASANNA
  • VATTOLI DHARMAJA
  • VATTOLI SUNILKUMAR
  • VATTOLI SUNITHA
  • VATTOLI SUDHA

Respondents

  • VALAPPIL THANIKKUNNATH MADHAVI

Legal Representation & Advocates

Counsels for Petitioners

  • • P.A. Harish
  • • V.V. Surendran

Case Synopsis & Summary

OP(C) No.1570 of 2023 concerns an objection by the defendants 2 to 7 in OS No.213/2015 to Ext P7, an order by the Additional Munsiff-I, Kozhikode, appointing an Advocate Commissioner to record the evidence of the plaintiff in a suit for partition. The respondent, a 93-year-old woman who had suffered a paralytic stroke, sought to give oral evidence, while the petitioners contended the respondent’s alleged mental incapacity and the manner of recording evidence should be scrutinized. The court below allowed Ext P7, and the petitioners challenged that order in this petition under Article 227 of the Constitution. The petitioner’s counsel argued that the question of mental capacity should be examined by the court at an appropriate stage and not at the stage of Ext P7. The respondent’s position, as reflected in the pleadings and arguments, was that the respondent is capable of giving testimony and that recording by an Advocate Commissioner was appropriate for convenience and due process, given age and condition. The High Court held that Ext P7 did not suffer from illegality and dismissed the petition, aligning with the trial court’s approach. It cited Waryam Singh and others; Shalini Shyam Shetty; Garment Craft to emphasize the limited and supervisory nature of Article 227 powers, that interference should be reserved for grave dereliction and not mere errors. The court concluded that there was no error or illegality warranting interference and confirmed the order. The decision reflects a balance between safeguarding a vulnerable party's access to evidence and ensuring the efficient administration of justice.

Provisions of Law Cited

Article 227 of the Constitution of IndiaOrder XXXII of the Code of Civil Procedure, 1908

Legal Doctrines & Maxims

  • Supervisory power of High Courts under Article 227 is limited to cases of grave dereliction or flagrant violation of principles of law and justice; interference is not for correcting mere errors.
  • The need for an inquisition under Order XXXII CPC before recording evidence by an Advocate Commissioner is a governing procedural principle, as discussed in the context of the present case.

Submissions & Arguments

Contentions of Appellants / Petitioners

Applicants contended Ext P7 is illegal since the court below did not conduct an inquisition into the respondent’s mental capacity under Order XXXII CPC before permitting evidence to be recorded by an Advocate Commissioner. They submitted that the question of mental incapacity should be left for the proper stage and argued to set aside Ext P7, limiting the challenge to the legality of the Advocate-Commissioner appointment.

Contentions of Respondents

Respondent argued that the 93-year-old plaintiff, having suffered a paralytic stroke, is capable of giving evidence and that recording by an Advocate Commissioner is appropriate for her convenience; no inquisition under Order XXXII was required prior to recording evidence; the court’s order was properly within the bounds of law.

Cited Precedents (3)

Case NameCitationTreatmentExplanation
Waryam Singh and another vs. Amarnath and anotherAIR 1954 SC 215PositiveCited to illustrate the scope and limits of Article 227; interference is limited to grave injustice, not mere errors.
Shalini Shyam Shetty and another vs. Rajendra Shankar Patil(2010) 8 SCC 329PositiveCited to delineate the powers and limits of Article 227 and the supervisory jurisdiction of High Courts.
M/s. Garment Craft vs. Prakash Chand Goel(2022) 4 SCC 181PositiveCited as contemporary authority on supervisory jurisdiction and proper exercise of Article 227 powers.

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Extracted Judgment Text

Exact text extracted from official judgment records.

1 OP(C) No.1570 of 2023 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` WEDNESDAY, THE 2[ND] DAY OF AUGUST 2023 / 11TH SRAVANA, 1945 ``` ``` OP(C) NO. 1570 OF 2023 ``` ``` AGAINST THE ORDER/JUDGMENT in IA 7/2023 IN OS 213/2015 OF ADDITIONAL ``` ``` MUNSIFF COURT-I ,KOZHIKODE ``` ## **`PETITIONER/S:`** ``` 1VATTOLI SATHYABHAMA,AGED 66 YEARS D/O. VATTOLI GOPALAN, RESIDING AT VATTOLI HOUSE, KARUVISSERY AMSOM DESOM, PO. KARAPARAMBU, KOZHIKODE, PIN - 673010 2VATTOLI PRASANNA,AGED 64 YEARS D/O. VATTOLI GOPALAN, RESIDING AT VATTOLI HOUSE, KARUVISSERY AMSOM DESOM, PO. KARAPARAMBU, KOZHIKODE, PIN - 673010 3VATTOLI DHARMAJA,AGED 62 YEARS D/O. VATTOLI GOPALAN, RESIDING AT VATTOLI HOUSE, KARUVISSERY AMSOM DESOM, PO. KARAPARAMBU, KOZHIKODE, PIN - 673010 4VATTOLI SUNILKUMAR,AGED 60 YEARS S/O. VATTOLI GOPALAN, RESIDING AT VATTOLI HOUSE, KARUVISSERY AMSOM DESOM, PO. KARAPARAMBU, KOZHIKODE, PIN - 673010 5VATTOLI SUNITHA,AGED 58 YEARS D/O. VATTOLI GOPALAN, RESIDING AT VATTOLI HOUSE, KARUVISSERY AMSOM DESOM, PO. KARAPARAMBU, KOZHIKODE, PIN - 673010 6VATTOLI SUDHA,AGED 57 YEARS D/O. VATTOLI GOPALAN, RESIDING AT VATTOLI HOUSE, KARUVISSERY AMSOM DESOM, PO. KARAPARAMBU, KOZHIKODE, PIN - 673010 BY ADVS. P.A.HARISH V.V.SURENDRAN ``` ## **`RESPONDENT/S:`** ``` VALAPPIL THANIKKUNNATH MADHAVI ,AGED 93 YEARS D/O. LATE ARAYAM THOPPIL MANDAN, RESIDING AT VADAKKETHODI MEETHAL HOUSE, POTHENCHERRY THAZHAM, PO POKKUNNU, VALAYANAD AMSOM DESOM, KOZHIKODE, PIN - 673013 ``` ``` THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 02.08.2023, THE ``` ``` COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 OP(C) No.1570 of 2023 ## **C.S DIAS,J.** **--------------------------OP(C) No.1570 of 2023 ----------------------------Dated this the 2[nd] day of August, 2023[ .]** ## **JUDGMENT** Assailing Ext P7 order passed by the Court of the Additional Munsiff-I, Kozhikode, the defendants 2 to 7 in OS No.213/2015 have filed the original petition. The respondent is the plaintiff. 2. The brief relevant facts for the determination of the original petition are; (i) The respondent has filed the above suit against the petitioners for a decree of partition. The first defendant in the suit, the mother of the petitioners, died during the pendency of the suit. 3 OP(C) No.1570 of 2023 (ii) The petitioners have resisted the suit through Ext P2 written-statement, inter alia, contending that the respondent is incapable of filing the suit and has not understood the contentions raised in the suit due to her mental incapacity. (iii) The suit was amended on several occasions and additional written-statements have been filed. (iv) The petitioners have been requesting the court below to conduct an inquisition regarding the mental capacity of the respondent. - (v) When, the suit was listed for trial, the respondent’s children have filed IA No.7/2023 (Ext P5) to get the evidence of the respondent recorded through an Advocate Commissioner. Although the petitioners objected to Ext P5 application through Ext P6 counter 4 OP(C) No.1570 of 2023 statement, the court below, by the impugned Ext P7 order, has allowed Ext P5 application. (vii) Ext P7 is ex-facie illegal and unsustainable in law, especially since the court below has not conducted an inquisition as contemplated under Order XXXII of the Code, before permitting the evidence of the respondent to be recorded by an Advocate Commissioner. Hence, Ext P7 may be set aside. 3. Heard; Sri.P.A Harish, the learned counsel appearing for the petitioners on admission. 4. The learned counsel appearing for the petitioners submitted that the question regarding the respondent’s mental capacity/capability to institute Ext P1 plaint may not be considered by this Court at this stage, instead the same may be left open so as to enable the petitioners to 5 OP(C) No.1570 of 2023 raise the said question at the appropriate stage. The said submission is recorded and, therefore, this Court is confining the original petition, as to the legality of Ext P7 order appointing an Advocate Commissioner. 5. The point is whether there is any error in Ext P7 order. 6. The respondent has filed Ext P1 plaint in the year 2015, seeking a decree of partition. The petitioners have resisted the suit by filing their written-statement, inter alia, contending that Ext P1 suit has been instituted at the instigation of the children of the respondent against her free will and volition. 7. Indisputably, the petitioners have not taken any steps to substantiate their contentions, whether or not they are tenable in law. 6 OP(C) No.1570 of 2023 8. It is when the suit was listed for trial and the respondent filed Ext P5 application, to get her evidence recorded by an Advocate Commissioner, that the petitioners resisted the application and contended that the respondent should be examined in Court to ascertain her mental capacity. 9. A reading of the affidavit in support of Ext P5 application reveals that the respondent has averred that she is a senior citizen aged 93 years having physical ailments and is not in a position to travel. Nonetheless, her vitals, such as mental and emotional areas are alright and she is capable of giving oral evidence, even though she has suffered a recent stroke and has a bit of speech ailment/dysarthria. Therefore, an Advocate 7 OP(C) No.1570 of 2023 Commissioner may be appointed to record her oral testimony. 10. The court below, after appreciating the rival pleadings in Exts P5 and P6, taking into consideration that the respondent is a 93 year old woman, who has suffered a paralytic stroke, and that the suit is for partition, wherein the allegation regarding incapacity of the respondent and the rationale behind the suit is irrelevant, appointed an Advocate Commissioner to record the evidence of the respondent. 11. As rightly concluded by the court below, as the respondent is a 93 year old woman who has suffered a paralytic stroke. I do not find any error in the court below appointing an Advocate Commissioner to record the evidence of the respondent, whose convenience has 8 OP(C) No.1570 of 2023 to be given due weightage and preference. Thus, I am completely in agreement with the findings rendered by the court below in Ext P7 order. 12. The Hon’ble Supreme Court has, in **Waryam Singh and another vs. Amarnath and another** [AIR 1954 SC 215], **Shalini Shyam Shetty and another vs. Rajendra Shankar Patil** [ (2010) 8 SCC 329], **M/s.Garment Craft vs. Prakash Chand Goel** [(2022) 4 SCC 181] and a plethora of precedents, delineated the powers of the High Courts under Article 227 of the Constitution of India. It is, inter alia, held that the power conferred under the Article is to keep the courts/ tribunals within their bounds of authority and to see that they do their duty as expected of them in a legal manner. The power is restricted to the cases of serious dereliction 9 OP(C) No.1570 of 2023 of duty and flagrant violation of fundamental principles of law and justice, where if this Court does not interfere, a grave injustice will remain uncorrected. But, this does not mean that the said power is to be exercised indiscriminately and for correcting mere errors. 13. Viewed in the above legal and factual background, I do not find any error or illegality in Ext P7 order warranting interference by this Court under Article 227 of the Constitution of India. The original petition is devoid of any merits and is hence, consequentially dismissed. sd/- sks/2.8.2023 **C.S.DIAS, JUDGE** 10 OP(C) No.1570 of 2023 ## **`APPENDIX OF OP(C) 1570/2023`** ``` PETITIONER EXHIBITS Exhibit P1A TRUE COPY OF THE PLAINT IN O.S. 213/2015 ON THE FILE OF THE ADDITIONAL MUNSIFF-I, KOZHIKODE DATED 10.04.2015 Exhibit P2A TRUE COPY OF THE WRITTEN STATEMENT IN O.S. 213/2015 DATED 16.09.2015 ON THE FILE OF THE ADDITIONAL MUNSIFF COURT- I, KOZHIKODE Exhibit P3TRUE COPY OF THE ADDITIONAL WRITTEN STATEMENT IN O.S. 213/2015 DATED 21.01.2016 ON THE FILE OF THE ADDITIONAL MUNSIFF COURT- I, KOZHIKODE Exhibit P4TRUE COPY OF THE ADDITIONAL WRITTEN STATEMENT IN O.S. 213/2015 DATED 16.06.2023 ON THE FILE OF THE ADDITIONAL MUNSIFF COURT -I, KOZHIKODE Exhibit P5A TRUE COPY OF THE AFFIDAVIT FILED IN SUPPORT OF I.A. 07/2023 DATED 31.05.2023 IN O.S. 213/2015 ON THE FILE OF THE ADDITIONAL MUNSIFF COURT- I, KOZHIKODE Exhibit P6A COPY OF THE COUNTER STATEMENT FILED BY THE PETITIONERS IN I.A.07/2023 IN O.S.213/2015 ON THE FILE OF THE ADDITIONAL MUNSIFF-I, KOZHIKODE DATED 12.06.2023 Exhibit P7. A TRUE COPY OF THE ORDER IN I.A. 07/2023 IN O.S. 213/2015 DATED 07.07.2023 ON THE FILE OF THE ADDITIONAL MUNSIFF-I, KOZHIKODE ```