IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 27TH OCTOBER 2011 / 5TH KARTHIKA 1933 OP(C).No. 1792 of 2011(O) ------------------------- OS.1654/2011 of PRL.MUNSIFF COURT,THRISSUR .................... PETITIONER: -------------- TINY @ ANTONY, S/O.A.F.THOMAS, AKKARAPATTI HOUSE, KERALA DHANA VYAVASAYA KURIES & LOANS, SHORNUR ROAD, OPP. OF SAROJA NURSING HOME, THRISSUR. BY ADV. SRI.JIJO PAUL RESPONDENT(S): --------------- 1. JACKY, S/O.THOTTUKARA PUTHENVEETTIL THANKA, MADAKKATHARA VILLAGE DESOM, THRISSUR TALUK, THRISSUR DISTRICT, PIN-680651. 2. FRANCIS @ FRANCY, S/O.LATE AKKARAPATTY JOSE, NADATHARA VILLAGE, DESOM, THRISSUR TALUK, THRISSUR DISTRICT, PIN-680751. 3. THRISSUR MUNICIPAL CORPORATION, REPRESENTED BY SECRETARY, MUNICIPAL CORPORATION OFFICE, PIN-680 001. ADV. SRI.K.P.VIJAYAN FOR R3 SRI.V.M.SYAM KUMAR FOR R3 SMT.KRIPA ELIZABETH MATHEWS FOR R3 SRI.V.N.HARIDAS FOR R3 SRI.K.RAMAKUMAR, SENIOR ADVOCATE FOR R1 SMT.R.PADMAKUMARI SRI.T.RAMPRASAD UNNI FOR R1 SMT.SMITHA GEORGE FOR R1 SRI.N.SUBRAMANIAM AMICUS CURIAE THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 27/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C).No. 1792 of 2011 APPENDIX PETITIONER'S EXHIBITS: EXT.P1: TRUE COPY OF THE PLAINT DATED 6.5.2011 IN O.S NO.1654/2011 IN THE COURT OF MUNSIFF EXT.P2: TRUE COPY OF THE ORDER DATED 27.5.2011 IN I.A NO.5114/2011 IN O.S NO.1654/2011 PASSED BY THE COURT OF MUNSIFF, THRISSUR EXT.P3: TRUE COPY OF THE NOTICE NO.PH1/12110/2011 DATED 1.6.2011 ISSUED BY THE HEALTH OFFICER OF THE 3RD RESPONDENT CORPORATION EXT.P4: TRUE COPY OF THE JUDGMENT OF PRINCIPAL MUNSIFF COURT, THRISSUR IN O.S NO.2881/2006 DATED 16.10.2008 EXT.P5: TRUE COPY OF THE PLAINT IN O.S NO.2180/2010 IN THE MUNSIFF COURT, THRISSUR DATED 16.07.2010 EXT.P6: TRUE COPY OF THE ORDER DATED 06.09.2010 O.S NO.2426/2010 IN THE MUNSIFF COURT, THRISSUR. EXT.P7: TRUE COPY OF THE COMPLAINT DATED 18.07.2010 MADE BY THE PETITIONER BEFORE THE TOWN EAST POLICE STATION, THRISSUR. EXT.P8: TRUE COPY OF THE RECEIPT DATED 18.07.2010 ISSUED BY THE TOWN EAST POLICE STATION, THRISSUR. EXT.P9: TRUE COPY OF THE REPRESENTATION DATED 07.12.2010 MADE BY THE PETITIONER BEFORE THE DEPUTY SUPERINTENDENT OF POLICE, THRISSUR. EXT.P10: TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT DATED 14.12.2010 IN W.P (C) NO.36924/2010 EXT.P11: TRUE COPY OF THE F.I.R IN CRIME NO.573/2011 OF THE TOWN EAST POLICE STATION, THRISSUR DATED 22.04.2011. EXT.P12: TRUE COPY OF THE AFFIDAVIT UNDERTAKING FILED BY THE 1ST RESPONDENT DATED 19.07.2010 IN O.S NO.2180/2010 BEFORE THE MUNSIFF COURT, THRISSUR. EXT.P13: TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT DATED 25.5.2011 IN W.P (C) NO.12638/2011 RESPONDENTS EXHIBITS: EXT.R1(a): TRUE COPY OF AFFIDAVIT ALONG WITH PETITION FOR INJUNCTION DATED 7.5.2011 IN I.A NO.2155 OF 2011 ON THE FILE OF THE MUNSIFF'S COURT, THRISSUR. EXT.R1 (b) TRUE COPY OF NOTICE NO.PH1/11031/2011 DT. 26.4.2011 ISSUED BY THE PUBLIC INFORMATION OFFICER AND HEALTH OFFICER, THRISSUR CORPORATION. EXT.R1 (c): TRUE COPY OF AFFIDAVIT ALONG WITH PETITION I.A NO.6712 OF 2011 IN O.S 1654 OF 2011 ON THE FILE OF THE MUNSIFF'S COURT, THRISSUR. EXT.R1 (d): TRUE COPY OF AFFIDAVIT ALON G WITH PETITION I.A NO.6713 OF 2011 IN OS 1654 OF 2011 ON THE FILE OF THE MUNSIFF'S COURT, THRISSUR. EXT.R1 (e): TRUE COPY OF AFFIDAVIT ALONG WITH PETITION I.A NO.6714 OF 2011 IN I.A 5114/2011 IN OS 1654 OF 2011 ON THE FILE OF THE MUNSIFF'S COURT, THRISSUR. EXT.R1 (f) TRUE COPY OF AFFIDAVIT ALONG WITH PETITION I.A NO.6715 OF 2011 IN I.A 5114/2011 IN OS 1654 OF 2011 ON THE FILE OF THE MUNSIFF'S COURT, THRISSUR. /TRUE COPY/ P.A TO JUDGE K.HEMA, J. ----------------------------------------------- O.P.(C) No. 1792 of 2011 ----------------------------------------------- Dated this 27th day of October, 2011 . JUDGMENT Can a plaint be quashed under Article 226 or Article 227 of the Constitution? This important question arises for consideration in this petition. 2. This petition is filed, mainly, on the following averments: In 1962, petitioner's father had taken a shop room on lease from 2nd respondent's father. The original landlord and tenant, both expired. Petitioner, his brothers and mother continued as tenants and they are running business in the shop room in photostat, telephone booth, fax, lamination etc., under the style, “City photostat”. Formerly, textile business was conducted in the shop till 1986. Petitioner is paying profession tax and electricity bills for the room. His employees are also registered with labour department. 3. After death of original landlord, his children (one of them is 2nd respondent) tried to trespass into the shop room and on 16.10.2008, a suit was filed by petitioner and his [O.P.(C) No.1792/11] 2 mother as OS 2881/2006 to restrain forceful eviction from the shop room. The suit was decreed on 16.10.2008 and injunction was granted. The copy of judgment is Ex P4. 4. After about two years, in 2010, 1st respondent made attempts to trespass into the room and demolish the wall of the shop room and to obstruct the business conducted in the room, on the claim that he purchased the room. Petitioner and his mother were constrained to file a suit on on 16.07.2010 as OS 2180/2010 against 1st respondent to prohibit such illegal acts. The copy of the plaint in the said suit is Ex P5. The 1st respondent also filed a suit as O.S 2426/2010 against petitioner, his mother and brothers claiming exclusive title over the property. In the said suit, first respondent also filed an interlocutory application for injunction against petitioner and his mother but it was dismissed 06. 9. 2010 with costs. The copy of the order is Ex P6. 5. First respondent and his goondas started threatening petitioner forcing him to vacate the shop room. Petitioner was forced to file a complaint on 18.07.2010 before [O.P.(C) No.1792/11] 3 police (Vide Ex P7 and Ex P8). But, under his influence from 1st respondent, the Sub Inspector took the side of 1st respondent and he also started threatening petitioner. Therefore, petitioner made a representation against Sub Inspector before Deputy Superintendent of Police, as per Ex P9. Despite all these, harassment from police also continued. 6. Petitioner was forced to file a Writ Petition against police harassment, as WP(C) no. 36924/2010. In the said Writ Petition, Government pleader made a submission that police will not interfere since it is a civil dispute and the writ petition was disposed of, accordingly. The copy of the judgment is Ex P10. However, first respondent filed an undertaking dated 19.07. 2010 as Ex P12 in OS 2180/2010 that he will not forcefully dispossess petitioner from property, he will not cut open the wall of the room etc. 7. Thereafter, on 21. 04. 2011, 1st respondent and his hench men entered premises of the shop room and broke open the lock and removed furniture and equipments kept in the room. Certain other valuable articles were also removed. [O.P.(C) No.1792/11] 4 Northern wall of the room was partly demolished to create an opening to the adjacent room on its north. A complaint was again filed by petitioner before police and a case was registered on 22.04.2011 against 1st respondent and copy of FIR is Ex P11. 8. First respondent's threat continued and petitioner apprehended illegal dispossession. Petitioner was therefore forced to move this Court for police protection, as per W. P.(C) no. 12638/2011. An interim order dated 26. 04. 2011 was passed by this court in the Writ Petition granting effective police protection to enable petitioner to carry on the business smoothly in the shop room. The interim order was, later, made absolute, as per Ex P13 -order, after hearing 1st respondent also on merit. 9. First respondent had also tried to get power connection to the room disconnected, by influencing corporation and it was disconnected also, for some time. Petitioner had to approach higher authorities for re-connection. Petitioner also had to file Writ Petition as no. 2496/2011 for a [O.P.(C) No.1792/11] 5 direction to the Corporation authorities not to disconnect electric connection, except in accordance with law. 10. Having failed in all attempts to evict petitioner from the shop room forcibly and illegally, 1st respondent filed a suit before Munsiff court on 06.05.2011 as OS 1654/2011. A copy of the plaint is Ex P1. The prayer in the suit is to issue a direction to 3rd respondent-Corporation to prohibit 2nd respondent from doing any business of prohibitory articles etc., being carried on in the shop room, without permission from the Corporation. 11. An interlocutory application was also filed in the suit for injunction against 2nd respondent and as per an Ex P2-order dated 27.05.2011, an interim injunction was issued restraining 2nd respondent from conducting any business in prohibitory articles without licence or without permission from the Corporation. Pursuant to Ex P2-order, Health Officer, Corporation issued Ex. P3- order dated 01.06.2011, directing to close down the shop within 24 hours, failing which, petitioner was also informed that the shop will be closed down by the [O.P.(C) No.1792/11] 6 Department without any further notice. 12. Even though Ex P3 order is issued to 2nd respondent, it was served on petitioner, since he is in possession of the room. Petitioner was asked to close down the shop failing which he was also informed that the shop will be closed down by Corporation. Petitioner who is actually conducting business in the shop is aggrieved and affected by Exts.P2 and P3 orders. According to petitioner, the very filing of suit as per Ex P1 is vitiated by fraud, malafides and illegalities. It is filed in collusion with 2nd respondent with a view to harass petitioner and to defeat his rights. Hence, petitioner seeks to quash Ex P1 plaint, Ex. P2 and also Ex P3 - orders. 13. Notice was served on all respondents, but only 1st and 3rd respondent filed counter affidavit and contested the matter. The second respondent, against whom the suit (Ex P1)is filed, remained ex parte. 14. First respondent filed counter affidavit and took up the following contentions: a Petition under Article 226 of constitution is not maintainable against an order of civil court. [O.P.(C) No.1792/11] 7 Ex P2-order is appealable under Order XL111 Rule 1(r) of CPC and hence efficacious remedy is available to petitioner. Ex P2 does not suffer from any error or excess of jurisdiction and it was passed, on being satisfied of the allegation in the affidavit filed along with the injunction petition. The extra-ordinary jurisdiction under Article 227 therefore, cannot be invoked to quash Ex P2 order. 15. In spite of Ex P2-order, petitioner continued to run the shop for a few days in violation of the court order. Hence, he is not entitled to discretionary reliefs. Since petitioner is carrying on business without licence, this information was conveyed by 1st respondent to Corporation (vide Ex R1(b). It is also averred by first respondent in the counter affidavit that Ex P3 is passed under Kerala Muncipalities Act and it is also appealable. The filing of this petition amounts to gross abuse of process of court and it is not maintainable, it is further contended. 16. The 3rd respondent-Corporation filed counter affidavit and contended that 1st respondent filed an application [O.P.(C) No.1792/11] 8 dated 31.03.2011 under Right to Information Act to know whether petitioner had licence to conduct business in the shop room. Hence, an enquiry was conducted by Corporation and it was revealed that photostat and STD booths were being run in the shop and stationary items are also sold in the shop, without obtaining licence. Petitioner was therefore, directed to take out a licence for the business but, he informed that there is some dispute in respect to the building and the matter is pending before the civil courts. 17. According to Corporation, petitioner informed the Corporation that an application would be filed for licence along with consent letter of the owners, after final orders are passed by the civil court in the matter. It is also stated in the counter affidavit filed by Corporation that Ex P3 order was issued by Corporation, directing the party to close down the business within 24 hours of receipt of the notice and report compliance. 18. Heard both sides in detail. Exts. P1 to P13 and Ext. R1(a) to R1(f) are marked on either side. Taking into consideration, the nature of legal issues involved in this case, [O.P.(C) No.1792/11] 9 Sri. N. Subramaniam, Advocate was appointed as amicus curiae for getting an independent view on the legal aspects involved and to assist me to take a right decision in the case. He was also heard in detail. 19. The very maintainability of this petition is challenged by 1st respondent. Learned senior counsel for respondent Sri.K.Ramkumar argued that the relief sought for to quash the plaint by itself is very strange and unheard of and if such relief is granted, there will be flood of litigation in the High Court. It is also vehementally argued that such a relief cannot be granted, either under Article 226 or 227 of the Constitution, since adequate and effective remedy is available against Exts. P2 and P3 orders as they are appealable orders. 20. If petitioner is aggrieved by Ex. P2 - order, he can very well approach the civil court itself, by seeking modification of the order, it is submitted. A petition is filed to implead petitioner in the suit, as per Ext.R1 (c ). It is also pointed out by learned counsel for 1st respondent that Ex P2 and P3-orders are not issued against petitioner and hence, he does not have [O.P.(C) No.1792/11] 10 locus standi to file these petitions. It is also submitted that petitioner made false averments in the petition that notice was issued to him by Corporation to close down the business in the shop etc. Ext.P2 and Ex.P3 are issued to 2nd respondent and not to petitioner, it is pointed out. 21. No writ can be issued to Munsiff Court, as held in Naresh v. State of Maharashtra (AIR 1967 SC 1), which is followed in Nallakoya v. Administrator, Union Territores of Laccadives etc. (1968 KLT 60), it is further argued by learned counsel for 1st respondent. He also argued that the question of fraud cannot be examined in a proceedings under Article 227. Referring to a decision reported in State of Uttar Pradesh & Another Vs. Pramod Kumar Shukla & Another (2008 12 SCC 267), it is argued on behalf of the 1st respondent that fraud is to be established before civil court itself, after getting petitioner impleaded in the suit and not before this Court. 22. It is also submitted that attempt of petitioner is to carry on business without licence from Corporation and if the [O.P.(C) No.1792/11] 11 impugned orders are quashed by this court, the result will be to allow him to continue business without licece, it is argued. On the settled principles, High court may not interfere with the orders challenged in this petition, it is submitted. 23. The argument raised by Sri.Jijo Paul, learned counsel for petitioner are in the following lines: The facts of this case and every step taken by 1st respondent will clearly reveal that 1st respondent has fraudulently filed the suit (vide Ex. P1) to harass petitioner and to see that the business run in the shop is closed down. He has filed the suit having failed in all illegal attempts to evict petitioner from the shop room which was in his possession as a tenant for a very long time. 24.First respondent deliberately and fraudulently omitted to implead petitioner as a defendant to the suit in order to obtain an order from court so that it could be misused to cause Corporation to pass an order to close down the shop, it is submitted. The suit is a collusive one and false averments are made in the plaint that 2nd respondent is in possession of the room, even though 1st respondent is fully aware that [O.P.(C) No.1792/11] 12 petitioner himself was doing business in the building because of the several litigations between petitioner and 1st respondent. 25. It is also submitted that 1st respondent gave false details in the plaint that hazardous and prohibited articles are kept in the shop room etc., knowing fully well that a photostat shop and a telephone booth etc., are run in the shop. Learned counsel also submitted that 1st respondent caused the Corporation to issue Ex P3-order and got it served on petitioner, even though the order is addressed to 2nd respondent. All these are done by 1st respondent with malafide intention to harass petitioner and by defrauding the Munsiff court, it is submitted. 26. Learned counsel for petitioner also vehemently argued that if any order passed by any court or authority results in manifest miscarriage of justice, even if the order as such may not be unjustifiable, on the facts pleaded, the High Court can interfere with such order of a subordinate court under Article 227, as held in Radhey Shyam and Another v. Chhabi Nath and Others (2009) 5 SCC 616), Surya Dev [O.P.(C) No.1792/11] 13 Rai v. Ram Chander Rai and others (AIR 2003 SC 3044), Jai Singh and Others v. Muncipal Corporation of Delhi and Another (2010 (9) SCC 385), Shalini Shyam Shetty and Another v. Rajendra Shankar Patil (2010(8) SCC 329). 27. Learned counsel for petitioner also argued that inherent power vested in the High Court both under Article 226 and Article 227 of the Constitution are wide enough and the court to adopt any procedure as it deems fit, in delivering justice to parties. Various other decisions were also cited by learned counsel for respondent to fortify this argument ( vide Sali and Others Vs. Santhosh (2010(1) KLT 676), General Secretary kTDC Workers Association Vs. Labour Court (2002(1) KLT SN 112 Page 88), Krishan Kumar v. State of Rajasthan (1992 SC 1790), Radhey Shyam & Another v. Chhabi Nath & Others ( 2009 (5) SCC 616), Shalini Shyam Shetty & Another v. Rajendra Shankar Patil (2010(8) SCC 329), Jai Singh & others v. Municipal Corporation of Delhi & Another (2010(9) SCC 385) T.G.N. Kumar v. State of Kerala & Others (2011(2) SCC 772) [O.P.(C) No.1792/11] 14 and Kanaiyalal Lalchand Sachdev & Others v. State of Maharashtra and Others (2011(2) SCC 782). 28. The petitioner being not a party to the suit and Ex P3 being issued not in the name of petitioner, (even though it is served on petitioner), there is no other remedy for him before any other forum and hence, this petition is maintainable under Article 226 and 227 of Constitution, it is further argued. Learned counsel for petitioner also argued that if an injunction order is passed by the trial court is per se illegal, it can be challenged under proceedings under Article 227 by an affected person who is not a party to the suit, without recourse to remedy of appeal as held by this Court in Manoj v. Guruvayoor Devaswom (2011 (2) KLT 1022). 29. It is also argued by learned counsel for petitioner that orders of a civil court can be examined in exceptional cases, where manifest miscarriage of justice has been occasioned. Ex.P1-plaint, P2 and P2 orders have resulted in gross miscarriage of justice and hence this is one of the best cases, in which entire proceedings are quashed with [O.P.(C) No.1792/11] 15 exemplary costs to petitioner since conduct of 1st respondent himself as revealed by various documents produced in this case warrants such a course, it is strongly argued. 30. Sri.N.Subramaniam.N, learned counsel who is appointed as amicus curiae, at the very outset drew my attention to the sad state of affair in the civil courts of the State wherein, ever so many suits are pending which are either per se not maintainable or which are filed with ulterior motive and with mala fides to harass the opposite party or a person who is not even a party to the suit. Many suits filed in civil courts are collusive in nature and if such proceedings are allowed to continue, it will result in gross miscarriage of justice and amount to abuse of process of court, it is strongly urged. 31. To prevent gross miscarriage of justice and abuse of process of court, this Court must intervene in fit cases under Article 226, 227 or Section 151 of C.P.C, learned amicus curae strongly opined. It is also pointed out by him that powers are even traceable to Section 151 of the Civil Procedure Code ('C.P.C' for short) and under Article 226 or Article 227 of [O.P.(C) No.1792/11] 16 the Constitution of India to interfere in fit cases. It is also submitted that as per provisions of CPC, a plaint can be rejected, only if there is no cause of action, but Section 151 of CPC can be invoked to terminate the proceedings, if the court is satisfied that continuance of the suit will amount to abuse of process of the court. He placed strong reliance upon the decision of the Madras High Court reported in Ranipet Municipality v. Shamsheer Khan (1998 (2) KLJ 879). 32. Sri. Subramaniam.N, learned counsel strongly opined that Rampet Municiplity's case is an instructive and illustrative decision wherein discussion is held as to what amounts to abuse of process of court etc. It is also submitted that if the courts finds, on facts of the case, that a party is approaching the court by indirect means and by circumventing the procedures established by law, this Court shall certainly intervene to prevent abuse of process of court. 33. Learned counsel Sri. Subramaniam, also argued that power to prevent abuse of process of court is inherent in every court. If a suit or legal proceedings is not intended for [O.P.(C) No.1792/11] 17 the purpose for which it is instituted, but it is malicious, this Court has to intervene and put a stop to the proceedings and this principle is reflected in the decision reported in Sreedharan v. Seethala (1988(2) KLT 732) and Brijraj Singh and Another v. Sheodan Singh and Others (1913 (35) ILR (Allahabad) 337, a decision of the Privy Council. 34. It is also argued by learned amicus curiae that if the court is satisfied that a wrongful gain is obtained by a party by institution of a malicious proceedings and it resulted in miscarriage of justice, it is fit to invoke the powers under Article 227 of the Constitution (Vide Shree Ramachandran v. Krishna Raj (1996 Law Weekly 559(Madras). Learned counsel also maintained the strong stand that the shrewdness of a party who approaches the court with malicious intention shall not be rewarded, but the court must put his foot down to remove the illegality. Though the above observations are made in a decision of the Gujarat High Court Bhupati Lal v. Bhanumati (AIR 1984 Gujarat 10) in some other context, the principles can be borrowed in a case of this nature, it is [O.P.(C) No.1792/11] 18 submitted. 35. It is also pointed out by learned amicus curiae that in Surya Dev Rai's case, Supreme Court followed various decisions and made an elaborate discussion on the relevant topics and held that judicial court can be subject to jurisdiction of Writ. This position still holds the field and hence, this court can certainly place reliance on the dictum laid down in the said decision, it is submitted. Hence, a writ petition seeking writ against court cannot any more be dismissed on the ground no writ will lie against a court, it is argued. 36. Learned counsel Sri. Subramaniam.N also argued that this Court has power to strike off a suit under Section 151 and Article 227, if the suit has no bona fides, as held in Moderator Church of South India CSI Center Chennai v. J.S.Kingsley (1992 (2) MLJ 277), Mahadeb Jiew v. B.B. Sen (AIR 1951 Calcutta 563) and Ranipet Municipality v. M.Shamsheer Khan (1997 (2) LW 761). It is also pointed out by learned amicus curie that the Supreme Court observed in Ravinderkaur v. Ashok Kumar (2003 (8) SCC 289) that [O.P.(C) No.1792/11] 19 the diabolical method adopted by a party may bring bad name to judicial system and the courts have to intervene in appropriate cases. 37. On hearing both sides and learned amicus curiae and on a perusal of the pleadings and documents, I find some