Kerala High Court
Suma Thomas vs John P. Cherian
Author: Anil K. Narendran
Bench: Anil K.Narendran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
MONDAY,THE 18TH DAY OF SEPTEMBER 2017/27TH BHADRA, 1939
OP(C).No. 2782 of 2017 (O)
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IA.NO.705/2015 IN OS.NO.31/2015 OF SUB COURT, THIRUVALLA
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PETITIONER(S)/PLAINTIFFS :
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1. SUMA THOMAS, AGED 44, W/O.THOMAS MATHEW,
VARIPPASSERIL THUNDIYIL HOUSE, PERINGARA P.O.,
PERINGARA VILLAGE, THIRUVALLA TALUK, PIN-689 108.
2. STEPHEN, AGED 39, S/O.VASU,
NELLIMOOTTIL HOUSE, AMBOORI P.O., KOVILDESAM MURI,
AMBOORI VILLAGE, NEYYATTINKARA TALUK, PIN-695 505.
BY ADVS.SRI.JOSEPH GEORGE
SMT.NICEY A. MENON
RESPONDENT/DEFENDANT :
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JOHN P. CHERIAN, S/O.CHERIAN,
PERANGATTU VEEDU, KUMBANADU P.O.,
THATTACKATTU MURI, KOIPURAM VILLAGE,
THIRUVALLA TALUK, NOW RESIDING AT HOUSE NO.49,
PERANGATTU VEEDU, NOW CONCORD HIGH SCHOOL,
PEROORKKADA P.O., THIRUVANANTHAPURAM, PIN-695 005.
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION
ON 18-09-2017, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
sts
OP(C).No. 2782 of 2017 (O)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXHIBIT P1- TRUE PHOTOCOPY OF THE PLAINT IN O.S.31/2015 OF THE HON'BLE
SUB COURT, THIRUVALLA.
EXHIBIT P2- TRUE PHOTOCOPY OF THE ORDER DATED 20/07/2016 IN I.A.705/2015 IN
O.S.31/2015 OF THE HON'BLE SUB COURT, THIRUVALLA.
EXHIBIT P3- TRUE PHOTOCOPY OF THE ORDER DATED 31/03/2017 IN C.M.A.17/2016
OF THE HON'BLE DISTRICT COURT, PATHANAMTHITTA.
RESPONDENT(S)' EXHIBITS: NIL
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/TRUE COPY/
P.A.TO JUDGE
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ANIL K. NARENDRAN, J.
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O.P(C) No.2782 of 2017
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Dated this the 18th day of September, 2017
J U D G M E N T
The petitioners, who are the plaintiffs in O.S.No.31/2015 on the file of the Sub Court, Thiruvalla, are before this Court in this Original Petition filed under Article 227 of the Constitution of India seeking an order to set aside Ext.P2 order of the said court in I.A.No.705/2015 in O.S.No.31/2015 and Ext.P3 judgment of the District Court, Pathanamthitta in C.M.A.No.17/2016. They have also sought for an order directing the trial court to prohibit the respondent from alienating or encumbering the plaint schedule property till disposal of O.S.No.31/2015.
2. Heard the learned counsel for the petitioners/ plaintiffs.
3. O.S.No.31/2015 is one filed by the petitioners/ plaintiffs seeking a decree for return of money and damages from the respondent/defendant on the strength of an agreement alleged to have been executed between the parties dated 10.12.2012. Along with the suit, the petitioners filed O.P(C) No.2782 of 2017 :-2-:
I.A.No.705/2015, an application for attachment before judgment. The said application ended in dismissal by Ext.P2 order dated 20.7.2016. Against the said order, the petitioners filed C.M.A.No.17/2016 before the District Court, Pathanamthitta. The said appeal also ended in dismissal by Ext.P3 judgment dated 31.3.2017. Exts.P2 and P3 are under challenge in this Original Petition filed under Article 227 of the Constitution of India.
4. Article 227 of the Constitution of India deals with power of superintendence over all courts by the High Court.
Going by clause (1) of Article 227, every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction.
5. 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 O.P(C) No.2782 of 2017 :-3-:
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.
6. 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 O.P(C) No.2782 of 2017 :-4-:
of law.
7. In view of the law laid down in the decisions referred to supra, in this Original Petition filed under Article 227 of the Constitution of India this Court cannot sit in appeal over Ext.P2 order passed by the trial court, which stand confirmed in Ext.P3 judgment passed by the lower appellate court. After considering the rival contentions with reference to the facts and circumstances of the case, the trial court as well as the lower appellate court found that the petitioner/plaintiff is not entitled for an order of attachment before judgment. The reasoning of the trial court and the lower appellate court, as contained in Exts.P2 and P3, cannot be termed either perverse or patently illegal, warranting an interference of this Court, invoking supervisory jurisdiction under Article 227 of the Constitution of India.
In such circumstances, this Original Petition fails and the same is accordingly dismissed.
However, it is made clear that the observations contained in Exts.P2 and P3 are made for the limited purpose to decide the question as to whether the petitioner/plaintiff is entitled for an O.P(C) No.2782 of 2017 :-5-:
order of attachment before judgment. Thereafter, the trial court shall dispose of the suit untrammeled by any observations contained in Exts.P2 and P3.
Sd/-
ANIL K. NARENDRAN JUDGE //True Copy// P.A to Judge ab IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT:
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN FRIDAY, THE 22ND DAY OF SEPTEMBER 2017/31ST BHADRA, 1939 OP(C).No. 2810 of 2017 (O)
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(OP 4/2017 ON THE FILE OF SUB COURT, KANNUR) PETITIONER(S):/PETITIONER
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M.K.KRISHNAN MOOSAD, AGED 62 YEARS,S/O PARAMESWARAN MOOSAD, SANTHI OF SREE MAMANIKUNNU MAHADEVI TEMPLE, MAMANIKUNNU ILLAM, KRISHNAPURAM,MAMANAM,P.O.IRIKKUR,KANNUR-670593.
BY ADV. SRI.V.RAMKUMAR NAMBIAR RESPONDENT(S):/RESPONDENTS
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1. CHANDRAN MOOSAD AGED 57 YEARS,S/O.U.K.NARAYANAN MOOSAD, SACHIN NIVAS,IRIKKUR AMSOM DESOM,KANNUR DISTRICT, PIN-670593.
2. OORALIKANDY ILLATH UNNIKRISHNAN MOOSAD, AGED 48 YEARS,S/O.KRISHNAN MOOSAD,OORALIKANDY ILLAM, IRIKKUR VILLAGE,P.O.IRIKKUR,PIN-670593.
3. SREE MAMANIKKUNNU MAHADEVI TEMPLE, REPRESENTED BY ITS TRUSTEE,K.T.DEVIDAS NAMBIAR, AGED NOT KNOWN,SREE MAMANIKKUNNU MAHADEVI TEMPLE, IRIKKUR,KANNUR DISTRICT,PIN-670593.
4. THE EXECUTIVE OFFICER, SREE MAMANIKKUNNU MAHADEVI TEMPLE,IRIKKUR, KANNUR DISTRICT,PIN-670593.
5. THE ASSISTANT COMMISSIONER, HR & CE,(NOW THE MALABAR DEVASWOM BOARD), KASARAGOD DIVISION,NILESHWARAM,KASARAGOD DISTRICT, PIN-670593.
6. THE COMMISSIONER, MALABAR DEVASWOM BOARD,HOUSEFED COMPLEX, ERAHIPALAM(PO),KOZHIKODE,PIN-670593.
7. U.K.RAMESHAN MOOSAD, S/O.KRISHNAN MOOSAD,AGED 41 YEARS,OORALIKKANDY ILLAM, IRRIKKUR(PO),IRIKKUR AMSOM AND DESOM,KANNUR-670593.
R4-R6 BY SRI.K.R.SUNIL, SC, MALABAR DEVASWOM BOARD THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 22-09-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C).No. 2810 of 2017 (O)
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APPENDIX PETITIONER(S)' EXHIBITS
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EXHIBIT P1 COPY OF THE ORDER OF THE DEPUTY COMMISSIONER,MALABAR DEVASWOM BOARD,KOZHIKODE,DATED 18.9.2014 IN OA 23/2007. EXHIBIT P2 COPY OF THE COMMON ORDER IN A.P.NO.11,12 AND 13/2014 OF THE COMMISSIONER,MALABAR DEVASWOM BOARD,KOZHIKODE DATED 15.7.2015 EXHIBIT P3 COPY OF THE MEMORANDUM OF ORIGINAL PETITION PREFERRED BY THE PETITIONER IN O.P.NO.1/2015 BEFORE THE SUBORDINATE COURT, PAYYANNUR.
EXHIBIT P4 COPY OF THE COUNTER FILED BY THE FIRST RESPONDENT IN O.P.NO.1/2015 BEFORE THE SUBORDINATE COURT,PAYYANNUR EXHIBIT P5 COPY OF THE COUNTER FILED BY RESPONDENT NO.3 IN O.P.NO.1 OF 2015.
EXHIBIT P6 COPY OF THE COUNTER STATEMENT FILED BY RESPONDENT NO.4,THE EXECUTIVE OFFICER.
RESPONDENT(S)' EXHIBITS
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NIL //TRUE COPY// PA TO JUDGE.
jg-25/9 ANIL K.NARENDRAN, J.
.................................................................... OP(C) No.2810 of 2017 ....................................................................
Dated this the 22nd day of September, 2017.
J U D G M E N T The petitioner, who is the petitioner in OP No.4/2017 on the file of Subordinate Judge's Court, Kannur, which was originally filed as OP No.1/2015 before the Subordinate Judge's Court, Payyannur, is before this Court in this original petition filed under Article 227 of the Constitution of India seeking an order directing the Subordinate Judge's Court, Kannur to dispose of OP No.4/2017, as expeditiously as possible.
2. On 20.9.2017, when this original petition came up for consideration, the Registry was directed to get a report from the Subordinate Judge's Court, Kannur as to the present status of OP No.4/2017 and also the time required for its final disposal. Pursuant to the said order, report dated 22.9.2017 has been received, wherein it has been stated that respondent Nos.1 and 3 to 7 have already entered appearance and they are yet to file their objections. The second respondent is set ex parte. Considering the stage of proceedings, and also the number of older cases, which have to be disposed of in the target of the current year, it is reported that a OP(C)2810/17 -2- period of eight months is necessary to dispose of OP No.4/2017.
In such circumstances, considering the fact that OP No.4/2017 is one originally filed before the Subordinate Judge's Court, Payyannur in the year 2015, I deem it appropriate to dispose of this original petition by directing the Subordinate Judge's Court, Kannur to dispose of OP No.4/2017, as expeditiously as possible, at any rate, within an outer limit of eight months from the date of production of a certified copy of this judgment.
(ANIL K.NARENDRAN, JUDGE) jg-23/9