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2006 DIGILAW 99 (KER)

K. C. George v. Johny

2006-02-15

R.BASANT

body2006
JUDGMENT R. Basant, J. 1. The petitioner is the plaintiff in O. S. No. 212/04 before the Munsiff's Court, Mavelikara. The suit is for fixation of the eastern boundary of the plaint 1 to 4 schedule property in R. S. No. 277/101 of Chennithala Village. The defendants are the State of Kerala and its officials. The crux of the prayer of the petitioner/plaintiff is that the boundary may be fixed between the property belonging to the plaintiff and the property acquired by the defendants for establishment of the Pamba Irrigation Project. 2. The respondent herein filed an application as I. A. No. 1169/04 to get himself impleaded as the additional 5th respondent. The application was stoutly opposed by the petitioner herein. The learned Munsiff, Mavelikara, under Ext. P5, overruled the objections of the petitioner and directed impleadment of the respondent herein as the 5th defendant in the suit. The order is not revisable and it is, in these circumstances, that the petitioner has come before this Court with this writ petition. 3. At the very out set it is necessary for this Court, to remind itself of the nature, quality and contours of the jurisdiction of this Court under Art.227 of the Constitution. The impugned order is not revisable under the amended C.P.C. But notwithstanding the fact that the revision is not maintainable under S.115 of the C.P.C., in an appropriate case this Court has jurisdictional competence to interfere with the orders of the Subordinate Courts in exercise of its visitorial, supervisory and correctional jurisdiction under Art.227 of the Constitution. But it is by now trite, and it is not necessary to advert to the precedents which have been cited copiously at the Bar, that such jurisdiction cannot be invoked as a matter of course. Any and every error in facts or law committed by a Subordinate Court will not by itself persuade this Court to invoke its jurisdiction under Art.227 of the Constitution. Is there any error of jurisdiction? Is there abuse of the process of Court? Do such errors, if any, lead to failure/miscarriage of justice? Normally, error of law or facts committed by courts in the course of proceedings will have to wait for correction until the final orders are passed. Is there any error of jurisdiction? Is there abuse of the process of Court? Do such errors, if any, lead to failure/miscarriage of justice? Normally, error of law or facts committed by courts in the course of proceedings will have to wait for correction until the final orders are passed. Interference at an earlier stage which is not permitted by exercise of the revisional jurisdiction can be made by invoking the jurisdiction under Art.227 only in rare and exceptional cases where the court is satisfied that failure/miscarriage of justice would otherwise result. 4. Having thus reminded myself of the nature, quality and contours of the jurisdiction of this Court, I shall now proceed to consider the controversy. 5. According to the petitioner, he has title and possession over an item the property to the West of the Pamba Irrigation Project canal constructed in the acquired property, The respondent had produced before the learned Munsiff Exts. A1 to A3 in support of his assertions. The petitioner herein had in turn produced Ext. B1. The crucial question is thus as to whether to the West of the Pamba Irrigation Project canal the respondent herein has right, title and/or possession over any parcel of land. If he has any such right of bona fide claim of right, he is certainly a necessary or proper party in the suit filed by the petitioner to put up the eastern boundary of the plaint schedule property. 6. There are assertions and counter assertions as to where Ext. B1 property is situated. Reliance was placed on Exts. A1 to A3 to assert that the respondent has rights over the property to the West of the Pamba Irrigation Project canal. The court below, on a consideration of all the relevant circumstances, came to the conclusion that the petitioner deserves to be arrayed as the additional 5th respondent. 7. Controversies on facts will not be attempted to the resolved in proceedings under S..227 of the Constitution. By the same reasoning, the prayer to receive additional documents having a bearing on the controversy will not be considered favourably except under very exceptional circumstances. I do not find any such exceptional circumstances in this case. 7. Controversies on facts will not be attempted to the resolved in proceedings under S..227 of the Constitution. By the same reasoning, the prayer to receive additional documents having a bearing on the controversy will not be considered favourably except under very exceptional circumstances. I do not find any such exceptional circumstances in this case. Admittedly, the petitioner himself has filed an earlier suit O. S. No. 179/04 before the Munsiff's Court, Mavelikara, wherefrom, it is evidence that there is a dispute between the petitioner herein and the respondent herein about the rights over the property situated to the West of the Pamba Irrigation Project canal and East of the petitioner's property. It is true that an interim order has been passed in that suit against the respondent herein and the said order has been upheld by the appellate court as per Ext. P7 order produced before this Court. The conveys eloquently that there is a dispute between the petitioner and the respondent about the property of the petitioner to the West of the Pamba Irrigation Project canal. Thus, going by the suit - O. S. No. 179/04 filed by the petitioner herein against the respondent and two others, it is evident, that there is a dispute between the parties about the property to the West of the Pamba Irrigation Project canal over which the petitioner asserts rights. 8. In any view of the matter, in these circumstances, it appears to me that the conclusion of the court below that the respondent's request to be impleaded as the additional 5th defendant is justified and does not warrant interference by invocation of the jurisdiction vested in this Court under Art.227 of the Constitution. 9. Undoubtedly, the petitioner/plaintiff is the dominus litis in the suit filed by him and it is for him to decide who should be arrayed as parties. But this, it is trite, is not an absolute prerogative and is subject to the provisions of O.10(2) of the CPC. The court unquestionably has the power at any stage of the proceedings either upon or without application of either party, to direct impleadment of any person whether as plaintiff or defendant, whose presence the court finds to be necessary in order to enable the court effectively and completely to adjudicate upon and settle all questions involved in the suit. 10. The court unquestionably has the power at any stage of the proceedings either upon or without application of either party, to direct impleadment of any person whether as plaintiff or defendant, whose presence the court finds to be necessary in order to enable the court effectively and completely to adjudicate upon and settle all questions involved in the suit. 10. The specific assertion of the respondent is that he has rights over the property to the East of the eastern boundary of the plaintiff. Exts. A1 to A3 prima facie indicate the correctness of that assertion. The fact that O. S. No. 179/04 has been filed by the petitioner against the respondent and others conveys eloquently that there is such a dispute. In these circumstances, the discretion exercised by the court below on the basis of the materials placed before it to invoke its powers under O.10(2) of the CPC and permit impleadment of the respondent as the 5th defendant does not, at any rate, warrant interference. No gross error or perversity is shown to exist. Such alleged error even assuming the same exist, true does not result in any miscarriage or failure of justice. This writ petition, in these circumstances, cannot be considered favourably. 11. In the result, this writ petition is dismissed. I may hasten to observe that no observations made by the court below in the impugned order or by this Court in this judgment would fetter the powers of the learned Munsiff to come to appropriate conclusions on merits about the acceptability of the rival contentions in the suit. Uninfluenced by any such observation, the suit shall be disposed of by the learned Munsiff.