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2012 DIGILAW 827 (KER)

Harihara Varma v. Girija Menon

2012-09-05

BABU MATHEW P.JOSEPH, PIUS C.KURIAKOSE

body2012
JUDGMENT Pius C. Kuriakose, J. 1. This Original Petition under Article 227 of the Constitution is directed against Ext.P3 order passed by the Family Court, Palakkad. Ext.P3 is passed by the Family Court in I.A.527/12 in O.P.351/12. The O.P was for a decree of permanent prohibitory injunction restraining the respondent from interfering with the petitioner's entry into and enjoyment of the petition schedule properties. It is admitted that the respondent is in occupation of the petition schedule properties. The I.A. was for a temporary injunction in the lines of the perpetual injunction which was sought for in the Original Petition. 2. The case of the petitioner was that drama of a marriage was conducted between him and the respondent on the basis of an oral agreement of surrogacy as the petitioner did not have any issues out of the lawful wedlock he had with one Vimala Devi. According to the petitioner, the agreement between the parties was that a total amount of Rs.5 lakhs will be paid by the petitioner to the respondent provided the respondent conceives his child. According to the petitioner the first instalment of Rs.1 lakh is already paid. The respondent was accommodated in the petition schedule property which was purchased by the petitioner for the implementation of the surrogacy agreement. The petitioner alleges that the respondent has gone back on the terms of the agreement and hence, he has repudiated the agreement and he does not want the respondent to occupy the property at all. 3. Serious counter affidavit was filed by the respondent. Significantly absolutely no evidence and much less documentary evidence was produced by the petitioner to substantiate his case of having entered into surrogacy agreement and having staged drama of marriage along with the respondent. The learned Judge of the Family Court dismissed the IA holding that no prima facie case is made out for passage of injunction order against the respondent who is in actual physical occupation. 4. Having considered the impugned order as well as the submissions addressed before us by Sri.B.Jayasuriya, the learned counsel for the petitioner in detail, we are of the view that there is no infirmity about Ext.P3 and much less any infirmity which will justify the invocation of the supervisory jurisdiction of this Court under Article 227. Supervisory jurisdiction under Article 227 is a visitorial jurisdiction which will be invoked only very sparingly. Supervisory jurisdiction under Article 227 is a visitorial jurisdiction which will be invoked only very sparingly. The above jurisdiction will be invoked only when the order passed by the subordinate judicial authority is per se illegal in the sense that it offends a clear provision of law either statutory or settled, or is passed without jurisdiction or is of such a nature that it can be branded as a perverse order in the sense that such an order will not be authored by anybody having reasonable training or learning in law. Gauging Ext.P3 by those parametres, we are sure that the same is not liable to be corrected under Article 227. We decline jurisdiction and dismiss the O.P. However, there will be a direction to the learned Judge of the Family Court, Palakkad to try and dispose of O.P.351/12 at his earliest. Needless to mention that adequate opportunity should be afforded to both sides to adduce whatever further evidence they want to for substantiating their rival contentions. At any rate the learned Judge should ensure that the OP is finally disposed of within three months of receiving a copy of this judgment.