Kerala High Court
A. Sreevalsan Kuruppal vs Paramekkavu Devaswam on 13 October, 2016
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 20TH DAY OF NOVEMBER 2017/29TH KARTHIKA, 1939
OP(C).No. 2737 of 2016 ()
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IA NO. 19551/2016 IN OS 2562/2015 OF PRINCIPAL MUNSIFF COURT,
THRISSUR
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PETITIONER :
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A. SREEVALSAN KURUPPAL
S/O LATE APPAT SNKARANKUTTY KURUPPAL,
'KRISHNANJAI, KIZHAKKUMPATTUKARA,
THRISSUR- 680 005
BY ADVS.SRI.M.P.ASHOK KUMAR
SMT.BINDU SREEDHAR
RESPONDENTS :
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1. PARAMEKKAVU DEVASWAM
SWARAJ ROUND, THRISSUR, PIN- 680 001
REP.BY ITS PRESIDENT
2. PARAMEKKAVU DEVASWOM
SWARAJ ROUND, THRISSUR, PIN- 680 001
REP.BY ITS PRESENT SECRETARY
3. SRI. BALACHANDRAN
NETTISSERY, NELLENKARA,
THRISSUR- 680 651
R1 & R2 BY ADVS. SRI.P.VISWANATHAN
SRI.SUNIL N.SHENOI
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 20-11-2017,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
bp
OP(C).No. 2737 of 2016 ()
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APPENDIX
PETITIONER(S)' EXHIBITS :
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EXHIBIT P1: PHOTOCOPY OF THE I.A NO. 19551/2016 IN OS
NO. 2562/2015 DATED 13-10-2016 BEFORE THE PRINCIPAL
MUNSIFF COURT,THRISSUR
EXHIBIT P2: PHOTOCOPY OF THE ORDER IN IA NO. 19551/2016 IN OS
NO.2562/2015 DATED 20-10-2016 PASSED BY THE
PRINCIPAL MUNSIFF COURT, THRISSUR
RESPONDENT(S)' EXHIBITS : NIL.
//TRUE COPY//
P.A. TO JUDGE
bp
ANIL K.NARENDRAN, J.
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O.P.(C).No.2737 of 2016
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Dated this the 20th day of November, 2017
J U D G M E N T
The petitioner, who is the plaintiff in O.S.No.2562 of 2015 on the file of the Principal Munsiff's Court, Thrissur, has filed this Original Petition under Article 227 of the Constitution of India, seeking an order to set aside Ext.P2 order dated 20.10.2016 of the said court in I.A.No.19551 of 2016 in O.S.No.2562 of 2015 and to direct defendants 1 and 2 in that suit to adduce evidence before examination of the 3rd defendant. The petitioner has also sought for a declaration that after the evidence of the plaintiff is over, the defendants as per their ranking in the party array should adduce evidence, if they do not support the plaintiff.
2. On 02.11.2016, when this Original Petition came up for admission, this Court admitted the matter on file and issued notice by special messenger to the respondents. This Court has also granted an interim order of stay of all further proceedings in O.S.No.2562 of 2015 on the file of the Principal Munsiff's Court, Thrissur, for a period of three weeks. The said interim order, which was extended from time to time, was extended until further orders on 20.03.2017.
3. Heard the learned counsel for the petitioner/plaintiff and also the learned counsel for respondents 1 and 2/defendants 1 and
2. O.P.(C).No.2737 of 2016 2
4. The sole issue that arises for consideration in this Original Petition is as to the legality or otherwise of Ext.P2 order passed by the court below in I.A.No.19551 of 2016 in O.S.No.2562 of 2015.
5. O.S.No.2562 of 2015 is one filed by the plaintiff seeking a declaration that he is the Ooralan/Deshathashan/Hereditary Trustee of Paramekkavu Bhagavathy Temple. He is claiming the right based on a Will alleged to have been executed by his father Sri.A.S.Kuruppal, who was the Ooralan/Deshathashan of Paramekkavu Bhagavathy Temple from 1962, till his death on 27.02.2015. Defendants 1 and 2 in the suit are Paramekkavu Devaswom represented by its President and Secretary respectively. During the pendency of the suit, the third defendant got himself impleaded. The third defendant has also filed a counter claim, contending that he is the Ooralan/Deshathashan/ Hereditary Trustee of Paramekkavu Bhagavathy Temple.
6. When the suit was listed for trial, the plaintiff was examined as PW1. Thereafter, the plaintiff filed I.A.No.19551 of 2016, an application under Order XVIII Rule 2 of the Code of Civil Procedure, 1908 read with Section 151 of the Code seeking an order to direct defendants 1 and 2 to adduce evidence, if any, before the evidence of the third defendant is taken. The relief sought for in the said interlocutory application was opposed by defendants 1 and 2 by O.P.(C).No.2737 of 2016 3 filing counter statement. After considering the rival contentions, the court below by Ext.P2 order dated 20.10.2016 dismissed I.A.No.19551 of 2016. The reasoning of the court below, as contained in paragraph 5 of Ext.P2 order reads thus :
"5. Heard and perused the records. Order 18 Rule 2 CPC deals with 'Statement and Production of evidence.' The said provision would makes it clear that the party having the right to begin shall state his case and produce his evidence in support of the issues, which he is bound to prove. As far as defendants are concerned, the questions which of the defendants should begin has not been dealt with in Order 18 CPC. At this juncture the explanation to Rule 2 of Order 18 CPC comes into play. It says that the court for reasons to be recorded in writing, can direct any party to examine any witness at any stage. The general principle is that if any of the defendants supports the plaintiff in whole or in part, then he should lead his evidence first before the evidence of other defendants who do not support the plaintiff's case. Here, the 3rd defendant is not the person who supports the case of the plaintiff. But he has filed a counter claim claiming the right to be appointed as Ooralan of the Paramekkavu temple, for which the plaintiff has also filed the suit. Both the plaintiff and the 3rd defendant are claiming reliefs against the 1st and 2nd defendants. As far as the 1st and 2nd defendants are concerned, the status of 3rd defendant is that of a plaintiff. The 3rd defendant has been impleaded in the suit after filing of the written statement by the 1st and 2nd defendants. There is nothing in his pleadings to suspect collusion with 1st and O.P.(C).No.2737 of 2016 4 2nd defendants. The allegation that the counsel of the 3rd defendant and the counsel of the 1st and 2nd defendants had transacted something during the course of the examination of plaintiff cannot be a ground to attribute collusion between the parties. Considering the peculiar nature of the case I am of the view that the apprehension of the petitioner regarding filling up of laccuna in the evidence of 3rd defendant by examining witnessess of 1st and 2nd defendants is baseless. From the available materials I am satisfied that in the interest of justice the 3rd defendant has to be allowed to adduce evidence before the evidence of 1st and 2nd defendants. I am also satisfied that it will not cause any prejudice to the plaintiff. Hence this petition objecting to examine 3rd defendant as first defense witness is only to be dismissed."
7. Feeling aggrieved by Ext.P2 order of the court below, the petitioner/plaintiff is before this Court in this Original Petition.
8. The learned counsel for the petitioner/plaintiff would contend that once the plaintiff is examined as PW1 and the evidence on the side of the plaintiff is closed, the evidence on the side of the defendants should commence by examination of defendants 1 to 3 in the order in which they are arrayed in the suit. Since, neither defendants 1 and 2 nor the third defendant support the plaintiff, defendants 1 and 2 should be examined first and only thereafter opportunity should be given to the third defendant to adduce evidence. Now, by the impugned order, the court below in O.P.(C).No.2737 of 2016 5 an arbitrary manner, permitted examination of the third defendant, in preference to defendants 1 and 2. According to the learned counsel, the procedure adopted by the court is patently illegal and the reasoning in Ext.P2 order cannot be sustained.
9. Per contra, the learned counsel for defendants 1 and 2, with reference to the provisions under Order XVIII Rule 2(3) of the Code, especially the explanation added by notification dated 09.06.1959, would contend that the court below, after considering the fact that the third defendant has filed a counter claim contending that he should be the Ooralan/Deshathashan/Hereditary Trustee of the temple in question, rightly permitted him to adduce evidence before examination of defendants 1 and 2.
10. I have considered the rival submissions.
11. The pleadings and materials on record would show that the plaintiff is claiming right as Ooralan/Deshathashan/Hereditary Trustee of Paramekkavu Bhagavathy Temple on the strength of a Will dated 15.02.2014, alleged to have been executed by his father Sri.A.S.Kuruppal, who was the Ooralan/Deshathashan of Paramekkavu Bhagavathy Temple from 1962, till his death on 27.02.2015. During the pendency of O.S.No.2562 of 2015, the third defendant got himself impleaded and he filed a written statement with counter claim, contending that he is entitled to be the O.P.(C).No.2737 of 2016 6 Ooralan/Deshathashan/Hereditary Trustee of the temple.
11. During the trial, the plaintiff was examined as PW1. Thereafter, I.A.No.19551 of 2016 was filed by the plaintiff seeking an order to direct defendants 1 and 2 to adduce evidence, if any, before the evidence of the third defendant. After considering the pleadings and materials on record and also the nature of contentions raised by the defendants, the court below in Ext.P2 order found that before examination of defendants 1 and 2, it is essential to examine the third defendant. While arriving at such a conclusion, the court below has taken note of the provisions under Order XVIII Rule 2(3) of the Code and also the explanation incorporated by the notification dated 09.06.1959, which provides that nothing in Rule 2 shall affect the discretion of the court to direct or permit the examination of any witness at any stage of the suit for reasons to be recorded. A reading of Ext.P2 order would show that valid reasons have been stated in paragraph 5 of the said order, in support of the decision taken by the court below.
13. 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 O.P.(C).No.2737 of 2016 7 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.
14. 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 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. O.P.(C).No.2737 of 2016 8 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 can not 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.
15. 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.
16. Viewed in the light of the law laid down in the decisions referred to supra, the reasoning of the court below in Ext.P2 order O.P.(C).No.2737 of 2016 9 cannot be termed as either perverse or patently illegal, warranting an interference of this Court under Article 227 of the Constitution of India. It cannot also be said that while dismissing I.A.No.19551 of 2016 by Ext.P2 order, the court below has committed any manifest error.
In the result, this Original Petition fails and the same is accordingly dismissed.
Sd/-
ANIL K.NARENDRAN JUDGE AV