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2013 DIGILAW 388 (KER)

K. Lekshmi v. Letha

2013-04-12

THOMAS P.JOSEPH

body2013
Judgment : 1. This original petition is filed by the plaintiff in O.S. No.461 of 2011 of the Munsiff's Court, Adoor, aggrieved by the dismissal of I.A. No.2249 of 2011, confirmed by the learned Additional District Judge, Pathanamthitta, in C.M.A. No.41 of 2011. 2. Petitioner filed the suit for a decree for prohibitory injunction against the respondents tresspassing into the suit property. She also filed I.A. No.2249 of 2011 for an order of temporary injunction. Respondents claimed that they were residing in the building of the suit property since long in view of the relationship they had with the husband of petitioner and that petitioner and her men, under guise of the ex parte, ad interim order of injunction she obtained in I.A. No.2249 of 2011 forcibly evicted them. Both sides produced documents in support of their respective contentions. Learned Munsiff held that petitioner was not able to prove a prima facie case, found more probability for the case pleaded by the respondents and consequently dismissed I.A. No.2249 of 2011. 3. Petitioner challenged that order in C.M.A. No.41 of 2011. Learned Additional District judge after a reappraisal of the materials on record came to the same conclusion and dismissed C.M.A. No.41 of 2011. The judgment in C.M.A. No.41 of 2011 is under challenge. 4. Learned counsel for petitioner has contended that the courts below have not adverted to Exts. A1 to A14 in the proper manner. According to the learned counsel, version of respondents as to their alleged relationship with the husband of petitioner is quite unbelievable. It is also argued that a perusal of Ext.C5 would show that the case pleaded by the respondents is not correct. Learned counsel therefore requested this court to interfere with the impugned judgment/order. 5. I must bear in mind in that I am called upon to exercise jurisdiction under Article 227 of the Constitution. That gives correctional jurisdiction to this court. Various decisions on the point say that it is not as if any and every error of fact is required to be interfered by this court under Article 227 of the Constitution. This court can interfere when orders are passed in grave dereliction of duty or in fragrant abuse of fundamental principles of law or justice. ( See in Jai Singh and Others V. Municipal Corporation of Delhi and another (2010) 9 S.C.C.385 ). This court can interfere when orders are passed in grave dereliction of duty or in fragrant abuse of fundamental principles of law or justice. ( See in Jai Singh and Others V. Municipal Corporation of Delhi and another (2010) 9 S.C.C.385 ). The power under Article 227 of the Constitution cannot be exercised like a " bull in a China shop." 6. I must also notice that even the power of the appellate court to interfere with a discretionary order is limited - interference is required only when the order passed by the trial court in exercise of its discretion is arbitrary, perverse or capricious. 7. If petitioner has produced EXts.A1 to A14, respondents rely on Exts.B1 to B13 to support their respective claim of possession of the suit property and the building. Courts below were not able to find possession of the property with petitioner. 8. According to the respondents, they were in possession and were forcibly evicted under the guise of the ex parte, ad interim order of injunction petitioner had obtained in I.A. No.2249 of 2011. In Ext.C2, the Advocate Commissioner reports that at the time of his inspection of the building on 17.11.2011 he had found various pieces of furniture in the building and that respondents were in the process of removing some of those items. At the time of hearing, learned counsel for respondents claimed that respondents are still in possession of the building. Thereon the Advocate Commissioner was directed to inspect the building and submit report. In Ext.C5, report the Advocate Commissioner says that he was not able to find any of the pieces of furniture he had seen in the building and referred to in Ext.C2. 9. I have gone through the order on I.A. No.2249 of 2011 and find that learned Munsiff after considering the rival contention raised by the parties and the documents relied upon by them came to the conclusion that petitioner failed to show a prima facie case in her favour meaning thereby that learned Munsiff was not inclined to accept version of petitioner that she is in possession of the property. That finding is confirmed by the learned Additional District Judge. I find that learned Additional District Judge has reappreciated the materials on record to conclude that there is no reason to interfere with the order passed by the learned Munsiff. 10. That finding is confirmed by the learned Additional District Judge. I find that learned Additional District Judge has reappreciated the materials on record to conclude that there is no reason to interfere with the order passed by the learned Munsiff. 10. On going through the order on I.A. No.2249 of 2011, I find that it is neither arbitrary, nor perverse, nor capricious so that even the appellate court could have interfered with that order in C.M.A. No.41 of 2011. Dismissal of C.M.A. No.41 of 2011 is therefore justified. In that view of the matter, this court is not required to interfere in exercise of its power under Article 227 of the Constitution. 11. Learned Munsiff is directed to dispose of the suit untrammeled by the findings or observations contained in the impugned order/judgment or the judgment of this court. This original petition is dismissed as above.