Kerala High Court
Noushad Flourish vs Akhila Noushad on 8 April, 2022
Author: Anil K.Narendran
Bench: Anil K.Narendran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
FRIDAY, THE 8TH DAY OF APRIL 2022 / 18TH CHAITHRA, 1944
O.P.(FC) NO. 152 OF 2022
AGAINST THE ORDERS DATED 10.02.2022 IN I.A.NOS.6, 7, 8 & 9
OF 2021 IN
O.P.NO.941 OF 2019 OF FAMILY COURT, THALASSERY
PETITIONER:
NOUSHAD FLOURISH
AGED 44 YEARS, S/O. MOHIYUDHEEN,
FLOURISH, NEAR MEPPAYUR HIGHER SECONDARY SCHOOL,
KOZHIKODE DISTRICT, PIN - 673524.
BY ADVS.
K.SHIBILI NAHA
A.LOWSY
SONA JAYARAMAN K.
RESPONDENT:
AKHILA NOUSHAD
AGED 33 YEARS, D/O. RAZIK. E.V,
KALIMA, PERINGADI, NEW MAHE,
THALASSERY TALUK, KANNUR DISTRICT, PIN - 679532.
BY ADVS.
ASAF ALI T
SMT.LALIZA. T.Y.
THIS OP (FAMILY COURT) HAVING COME UP FOR FINAL
HEARING ON 30.03.2022, THE COURT ON 08.04.2022 DELIVERED
THE FOLLOWING:
2
O.P.(FC) No.152 of 2022
JUDGMENT
Ajithkumar, J.
This Original Petition under Article 227 of the Constitution of India has been filed challenging legality and correctness of Exts.P13 and P14 orders of the Family Court, Thalassery.
2. Ext.P13 is a common order dated 10.02.2022 in I.A.Nos.6, 8 and 9 of 2021 in O.P.No.941 of 2019 of the Family Court, Thalassery. That O.P was filed by the petitioner seeking an order for restitution of conjugal rights. Those I.As were filed for recalling RW1 and RW2, to reopen evidence and to issue notice to RW2, through the Superintendent of Police.
3. The purpose for reopening and recalling of RW1 and RW2 is to prove contents of a pen drive that was produced by the petitioner along with I.A.No. 4 of 2021 saying that it contained a telephonic conversation between the petitioner, who was examined as RW1, and RW2. The respondent objected to the said applications by filing separate objections, but with similar contentions. The applications were 3 O.P.(FC) No.152 of 2022 objected on the ground that evidence of RW2 with reference to the so-called telephonic conversation has no relevance or required for the purpose of disposal of O.P.No.941 of 2019, especially in the wake of pronouncement of 'Khula', by the respondent whereby the divorce has come into effect. Exts.P7, P11 and P12 are the copies of I.A.Nos.6, 8 and 9 of 2021. Objections filed by the respondent to Ext.P7 interlocutory application is Ext.P8.
4. I.A.No.7 of 2021 was filed by the petitioner in O.P.No.941 of 2019 to receive two documents. Ext.P9 is a copy of the said interlocutory application. Ext.P10 is the objection filed by the respondent to that application. As per Ext.P14 order, I.A.No.7 of 2021 was allowed except in respect of pen-drive. In fact, two documents produced as per this petition are copies of a notice and a reply. Those documents were ordered to be received in evidence. No pen drive was seen produced as per this petition. A pend-rive produced along with I.A.No.4 of 2021 was seen received on file. Hence, there is no scope for a challenge to Ext. P14 which is the 4 O.P.(FC) No.152 of 2022 order in I.A No.7 of 2021, despite the order says that the petition was allowed except in respect of the pen drive.
5. The learned counsel appearing for the petitioner would contend that conversation between the petitioner and RW2 was regarding a possible settlement of the dispute pertaining to the marital relationship between the petitioner and the respondent. It is urged that in the conversation reluctance of the respondent even to participate in mediation talks has been reflected and the said evidence is very much relevant and required for a just decision in O.P.No.941 of 2019. In such circumstances, Exts.P13 and P14 orders are sought to be set aside.
6. The learned counsel appearing for the respondent, on the other hand, would contend that the said evidence is not relevant in the nature of the matter in issue involved in O.P.No.941 of 2019. RW2 is a witness of the petitioner. While examined in court, he turned hostile to the petitioner. Therefore, no purpose would be served by recalling him. The learned counsel for the respondent also would submit that 5 O.P.(FC) No.152 of 2022 after pronouncement of 'Khula', there is absolutely no relevance for bringing in evidence proposed to be adduced through RW2.
7. O.P.No.941 of 2019 was filed for restitution of conjugal rights. Entire evidence in that case has been recorded. It was at that stage the petitioner filed Exts.P7, P9, P10 and P11 applications. The specific purpose for which RW2 is sought to be recalled is that the recorded telephonic conversation between the petitioner and RW2 has to be proved. The said pen-drive along with a certification under Section 65B of Evidence Act, 1872 has been produced in court.
8. It is seen that while examined RW2 in court, he did not support the case of the petitioner. Now, the conversation between the petitioner and RW2 recorded and fed to the pen- drive is sought to be proved, for which further examination of both RW1, the petitioner and RW2 is contemplated. While examined in court, RW2 did not support that case put forward by the petitioner. If RW2 is recalled, the purpose of that examination is to confront the recorded conversation claimed 6 O.P.(FC) No.152 of 2022 to be available in the pen-drive. A pen-drive which is an electronic device, can be received in evidence for proving its contents, provided it is properly certified under Section 65B of Evidence Act and genuineness and authenticity of its contents are proved. Even on accepting the conversation between the petitioner and RW2 available in the pendrive to be genuine, the use of it is that of a previous statement of RW2. Its purpose is to either corroborate or contradict the oral testimony of RW2 in court. Only if RW2 admits before court that he had had such a conversation and the statements in it were of him, there arises even a corroborative use of the contents in the pen-drive. It is an undisputed fact that RW2 while examined in court earlier deposed against the petitioner obviously by denying the so-called conversation. In the said circumstances, there is absolutely no purpose in recalling RW2 and examining him again in O.P.No.941 of 2019.
9. The fact that the respondent pronounced 'Khula' is not in dispute. Of course, the petitioner disputes its validity and he has filed O.P.No.622 of 2021 with a prayer to declare 7 O.P.(FC) No.152 of 2022 'Khula' made by the respondent on 27.05.2021 as void on the ground of fraud and want of necessary ingredients. Since there already is divorce in the form of 'Khula', whether it is valid or not, allowing the petitioner to bring in further evidence by reopening evidence in O.P.No.941 of 2019, which is a petition for restitution of conjugal rights is a futile exercise. That will only protract the proceedings.
10. Article 227 of the Constitution of India deals with power of superintendence over all courts by the High Court. Under clause (1) of Article 227 of the Constitution, every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction. Clause (2) of Article 227 provides that, without prejudice to the generality of the provisions under clause (1), the High Court may call for returns from such courts; make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts; and prescribe forms in which books, entries and accounts shall be kept by the officers of any such courts. Going by clause (4), nothing in 8 O.P.(FC) No.152 of 2022 Article 227 shall be deemed to confer on a High Court powers of superintendence over any court or tribunal constituted by or under any law relating to the Armed Forces.
11. 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 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.
12. 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, 9 O.P.(FC) No.152 of 2022 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 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 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.
13. In K.V.S. Ram v. Bangalore Metropolitan Transport Corporation [(2015) 12 SCC 39] the Apex Court held that, in exercise of the power of superintendence under Article 227 of the Constitution of India, the High Court can interfere with the order of the court or tribunal only when 10 O.P.(FC) No.152 of 2022 there has been a patent perversity in the orders of the tribunal and courts subordinate to it or where there has been gross and manifest failure of justice or the basic principles of natural justice have been flouted.
14. 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 principles of law.
15. In view of the law laid down in the decisions referred to supra, the High Court in exercise of its supervisory 11 O.P.(FC) No.152 of 2022 jurisdiction under Article 227 of the Constitution of India cannot sit in appeal over the findings recorded by a lower court or tribunal. The supervisory jurisdiction cannot be exercised to correct all errors of the order or judgment of a lower court or tribunal, acting within the limits of its jurisdiction. The correctional jurisdiction under Article 227 can be exercised only in a case where the order or judgment of a lower court or tribunal has been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice. Therefore, no interference under Article 227 is called for, unless the High 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 principles of law or where there has been gross and manifest failure of justice or the basic principles of natural justice have been flouted.
16. Viewed so, we are of the view that Ext.P13 and P14 orders cannot be said to be manifestly wrong or per se illegal. 12 O.P.(FC) No.152 of 2022 Therefore, there is no reason to interfere with the said orders. The Original Petition is accordingly dismissed.
Sd/-
ANIL K. NARENDRAN, JUDGE Sd/-
P.G. AJITHKUMAR, JUDGE dkr 13 O.P.(FC) No.152 of 2022 APPENDIX OF OP (FC) 152/2022 PETITIONER EXHIBITS Exhibit P1 CERTIFIED COPY OF THE APPLICATION I.A. NO.3/2021 IN O.P. NO.941/2019 FILED BY THE PETITIONER HEREIN ON 19.2.2021.
Exhibit P2 COUNTER FILED BY THE RESPONDENT TO EXT.P1 APPLICATION.
Exhibit P3 TRUE COPY OF THE ORDER DATED 22.2.2021 IN I.A. NO.3/2021 IN O.P. NO.941/2019 ON THE FILES OF THE FAMILY COURT, THALASSERY.
Exhibit P4 CERTIFIED COPY OF THE PETITION I.A. NO.4/2021 FILED ON 19.2.2021 SEEKING TO RECEIVE THE PEN DRIVE ALONG WITH SEC.65B CERTIFICATE.
Exhibit P5 CERTIFIED COPY OF THE COUNTER FILED BY THE RESPONDENT TO EXT.P4 APPLICATION.
Exhibit P6 CERTIFIED COPY OF THE ORDER DATED 22.2.2021 IN I.A. NO.4/2021 IN O.P. NO.941/2019 ON THE FILES OF THE FAMILY COURT, THALASSERY.
Exhibit P7 CERTIFIED COPY OF I.A. NO. 6/2021 IN O.P. NO.941/2019 DATED 3.5.2021.
Exhibit P8 TRUE OF THE COUNTER FILED BY THE RESPONDENT DATED 12.1.2022.
Exhibit P9 TRUE COPY OF THE APPLICATION I.A. NO.7/2021 DATED 3.5.2021 FILED BY THE PETITIONER ALONG WITH THE LIST OF DOCUMENTS.
14O.P.(FC) No.152 of 2022 Exhibit P10 TRUE COPY OF THE COUNTER FILED BY THE RESPONDENT TO EXT.P9 DATED 12.1.2022.
Exhibit P11 CERTIFIED COPY OF I.A. NO.8/2021 IN O.P. NO.941/2019 FILED ON 3.5.2021.
Exhibit P12 CERTIFIED COPY OF THE APPLICATION I.A. NO. 9/2021 IN O.P. NO. 941/2021 DATED 3.5.2021.
Exhibit P13 CERTIFIED COPY OF THE COMMON ORDER IN I.A. NO.6/2021,8/2021 & 9/2021 IN O.P. 941/2019 DATED 10.2.2022 ON THE FILES OF THE FAMILY COURT, THALASSERY.
Exhibit P14 CERTIFIED COPY OF THE ORDER IN I.A. NO.7/2021 IN O.P. NO. 941/2019 DATED 10.2.2022 ON THE FILES OF THE FAMILY COURT, THALASSERY.
Exhibit15 TRUE COPY OF THE ORIGINAL PETITION NO.622/2021 FILED BY THE PETITIONER BEFORE THE FAMILY COURT, THALASSERY