Kerala High Court
Deepa K Francis vs Joseph on 7 April, 2022
OP(C)(Filing) NO. 613 OF 2022
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
THURSDAY, THE 7TH DAY OF APRIL 2022 / 17TH CHAITHRA, 1944
OP(C) (Filing)NO. 613 OF 2022
(ARISIMG FROM O.S. NO.51/2017 IN MUNSIFF COURT, VAIKOM)
PETITIONER/2nd Defendant in O.S:
DEEPA K FRANCIS, D/o.K.K.FRANCIS, AGED 35 YEARS,
MADATHIL HOUSE, PADINJAKKARA P.O, VALLAKOM,
UDAYANAPURAM VILLAGE, VAIKOM TALUK - 686 146.
BY ADV DEEPA K FRANCIS(Party-In-Person)
RESPONDENTS/PLAINTIFF IN O.S:
1.
JOSEPH, AGED 74, S/O.KURUVILA, MADATHIL (H),
11 PADINJAREKARA MURI, PADINJAREKARA P.O, UDAYANAPURAM
VILLAGE, VAIKOM, NOW RESIDING AT U.S.A NY, 14580,
WEBSTER TWINLEAFTER 1140, REPRESENTED BY POWER OF
ATTORNEY HOLDER M.V. VARGHESE, AGED 60,
S/O.VARGHESE, MADATHIL (H), PADINJAREKARA MURI,
PADINJAREKARA P.O., UDAYANAPURAM VILLAGE, VAIKOM
TALUK, PIN - 686 146.
2. GEORGE JOSEPH @ MAMACHAN, AGED 60, S/O.JOSEPH,
MADATHIL (H), PADINJAREKARA MURI, PADINJAREKARA
P.O, UDAYANAURAM VILLAGE, VAIKOM TALUK, PIN - 686
146.
3. M.V. VARGHESE, AGED 60, S/O.VARGHESE, MADATHIL (H),
PADINJAREKARA MURI, PADINJAREKARA P.O, UDAYANAPURAM
VILLAGE, VAIKOM TALUK, PIN - 686 146
4. ANTOCHAN @ SAJI, AGED 52, S/O.VARGHESE, MADATHIL
HOUSE, PADINJAREKARA MURI, PADIUNJAREKARA P.O.,
UDAYANAPURAM VILLAGE, VAIKOM TALUK, PIN - 686 146.
By Adv.
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
07.04.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(C)(Filing) NO. 613 OF 2022
2
JUDGMENT
The original petition is filed under Article 227 of the
Constitution of India, seeking to set aside the judgment
and decree (Exts.P9 and P10) passed in O.S No.51/2017 of
the Court of the Munsiff, Vaikom.
2. The petitioner has, inter alia, averred in the
original petition that she is the 2 nd defendant in the suit.
The Trial Court had initially dismissed the application for
temporary injunction. Later, after five long years, the
Trial Court has decreed the suit. The judgment and
decree is passed in violation of the principles of natural
justice and suffers from errors in law. Hence, Exts.P9
and P10 may be set aside.
OP(C)(Filing) NO. 613 OF 2022
3. Heard; Smt. Deepa K.Francis, the party-in-
person.
4. I have perused the pleadings and materials on
record in the original petition. It is an undisputed fact
that the petitioner and other defendants were set ex
parte. It is thereafter that the Trial Court after
considering the pleadings and materials on record has
decreed the suit restraining the petitioner and the other
defendants from trespassing into the plaint schedule
property. Admittedly, the petitioner has not filed any
application to set aside the ex parte decree or challenge
the judgment and decree in appeal.
5. The Hon'ble Supreme Court in Mohd Inam v.
Sanjay Kumar Singhal and others [(2020) 7 SCC 327]
and in a catena of decisions has explicitly held that the
supervisory jurisdiction enshrined under Article 227 of
the Constitution of India should be sparingly exercised
only to keep the Subordinate Courts and Tribunals within
OP(C)(Filing) NO. 613 OF 2022
bounds of their authority and not in substitution of the
the powers of the Appellate Court. It is trite, an original
petition filed under Article 227 of the Constitution of India
is not to be exercised as a cloak of an appeal in disguise.
The power of superintendence and supervision is to be
exercised in case of flagrant abuse of fundamental
principles of law or justice, manifest error or palpable
perversity.
6. On going through the pleadings and materials on
record, I do not find any manifest error or perversity in
Exts.P9 and P10, especially since the petitioner and the
other defendants did not contest the proceeding and
were set ex parte. The Trial Court Court has passed the
impugned judgment and decree on the basis of the
uncontroverted pleadings and materials on record.
Therefore, I find force in the objection raised by the
Registry.
OP(C)(Filing) NO. 613 OF 2022
Resultantly, I dismiss the original petition, without
prejudice to the right of the petitioner, if so advised, to
move the Trial Court, to set aside the ex parte decree or
challenge the ex parte decree before the competent
Appellate Court.
Sd/-
C.S.DIAS
ma/7.4.2022 JUDGE
OP(C)(Filing) NO. 613 OF 2022
OP(C)(Filing) NO. 613 OF 2022
APPENDIX
PETITIONER'S EXHIBITS:
EXT.P1: THE TRUE COPY OF PLAINT INSTITUTED IN SUIT O.S
NO.51/2017 BEFORE THE MUNSIFF COURT, VAIKOM
EXT.P2: TRUE COPY OF I.A NO.(INJUNCTION PETITION) 497/2017 IN
O.S. NO.51/2017 ON THE FILE OF THE MUNSIFF COURT, VAIKOM
EXT.P3: TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY 4TH
RESPONDENT IN I.A NO.497/2017 DATED 1.11.2018
EXT.P4: TRUE COPY OF THE ORDER DATED 12.4.2017 IN I.A
NO.497/2017 PASSED IN O.S. NO.51/2017 ON THE FILES OF MUNSIFF
COURT, VAIKOM
EXT.P5: TRUE COPY OF THE CONTRACT DATED 18.2.2017 BETWEEN
THE 1ST RESPONDENT AND 2 TO 4 RESPONDENTS IN O.S. NO.51/2017 ON
THE FILES OF MUNSIFF COURT, VAIKOM
EXT.P6: TRUE COPY OF THE COMMISSION REPORT DATED 16.3.2017
ON THE FILES OF MUNSIFF COURT, VAIKOM
EXT.P7: TRUE COPY OF THE ROUGH SKETCH REPARED BY
ADV.GERORGE JOSEPH ON THE FILES OF MUNSIFF COURT, VAIKOM
EXT.P8: TRUE COPY OF THE PERMISSION LETTER FROM
FR.SEBASTIAN MADASSERY DATED 3.7.2018
EXT.P9: TRUE COPY OF THE JUDGMENT DT.15.2.2022 IN O.S.
NO.51/2017 ON THE FILES OF MUNSIFF COURT, VAIKOM
EXT.P10: TRUE COPY OF THE DECREE DT.15.2.2022 IN O.S NO.51/2017
ON THE FILES OF MUNSIFF COURT, VAIKOM
/TRUE COPY/
