G.Girish, J
1. Ext.P15, P16 and P23 orders passed by the Munsiff’s Court, Varkala in O.S.No.265/1999 are under challenge in this Original Petition filed
under Article 227 of the Constitution of India by the plaintiff in the said suit. Exts.P15 and P16 are orders disallowing the prayer for impleadment of
additional defendants. Ext.P23 is one rejecting the prayer for removal of Advocate Commissioner appointed in the case for measuring out the
properties.
2. The suit is one for fixation of boundary and anciliary reliefs. The property of the plaintiff has been scheduled as plaint A schedule property, and that
of the defendant as plaint B schedule property. Earlier, the suit was decreed, but it was challenged in appeal by the plaintiff himself. It is the second
stage of litigation which is now pending before the trial court after a remand of the case by the appellate court. Upon the application of the plaintiff, an
Advocate Commissioner was appointed to measure out the properties and to fix the southern boundary of plaint A schedule property with the
assistance of Taluk Surveyor. However, in the meanwhile, the plaintiff filed I.A.No.2693/2019 for impleadment of the wife and mother-in-law of the
defendant as additional defendants in the suit stating the reason that he got information that the aforesaid persons are having some right over the plaint
B schedule property. During the pendency of the above impleadment application, the mother-in-law of the defendant died, and accordingly, the plaintiff
filed I.A.No.1/2020 for the impleadment of legal representatives of the mother-in-law of defendant. The learned Munsiff dismissed I.A.No.2693/2019
vide Ext.P15 order holding that the impleadment sought for cannot be allowed since the plaintiff had not made clear as to what kind of right or interest
the proposed additional defendants were having over the plaint schedule properties. Consequential to the dismissal of I.A.No.2693/2019,
I.A.No.1/2020 was also dismissed as infructuous vide Ext.P16 order. Thereafter, the plaintiff filed I.A.No.16/2021 for the removal of the Advocate
Commissioner appointed in the case. The reason stated is that at the time of visit of the suit properties, the Advocate Commissioner spent most of his
time in the defendants’ property, and that he was not ready to accept the demand of the plaintiff to conduct the measurement of the properties in
the way suggested by the plaintiff. The above application of the plaintiff was dismissed by the learned Munsiff vide Ext.P23 order. It is thus that the
plaintiff is now before this Court with the present petition challenging Ext.P15, P16 and P23 orders passed by the trial court.
3. Heard the learned counsel for the petitioner and the learned counsel for the respondents.
4. As already stated above, Ext.P15 is the order of dismissal of the impleadment application filed by the plaintiff who wanted to arraign the wife and
mother-in-law of the defendant as additional defendants stating the reason that he had got information that the aforesaid persons were having some
right over the plaint B schedule property belonging to the defendant. Apart from a bare statement in the above regard, the affidavit filed by the plaintiff
in support of the above impleadment application (Ext.P12), did not contain anything to show that the presence of the aforesaid persons was necessary
for the effectual and complete adjudication of the dispute and to settle all the questions involved in the suit. It is under the above circumstances that
the learned Munsiff passed Ext.P15 order disallowing the prayer of the plaintiff seeking impleadment of the wife and mother-in-law of the defendant.
Ext.P16 order has been passed consequential to Ext.P15 order since there arose no question of a further impleadment of the legal representatives of
the mother-in-law of the defendant in view of the dismissal of Ext.P12 impleadment application. There is no definite contention for the plaintiff that the
proposed additional defendants are co-owners of plaint B schedule property. Ext.P12 impleadment application does not disclose that the persons
sought to be impleaded as additional defendants, shared common boundary with the plaintiff, or that those persons committed any sort of trespass or
encroachment into the property of the plaintiff. On the other hand, it appears from the rival contentions raised by the parties that the actual dispute is
in between the plaintiff and the defendant in respect of the identity and boundaries of their respective properties. Thus, there is absolutely no patent
illegality or perversity in the aforesaid orders of the trial court warranting interference in exercise of Article 227 of the Constitution of India.
5. As far as Ext.P23 order is concerned, the allegation of the plaintiff about the Commissioner spending most of his time in the plaint B schedule
property with the defendants, and that he was not ready to accept the demand of the plaintiff to measure out the property in a particular manner, has
been rightly found by the trial court as flimsy and trivial in nature. It is to be noted that the trial court has deputed the Advocate Commissioner to
measure out the properties and to fix the southern boundary of plaint A schedule property with the assistance of Taluk Surveyor. Hence there is
absolutely no reason for the plaintiff to be over-apprehensive about the mode of measurement of the properties since the Taluk Surveyor deputed to
assist the Advocate Commissioner, is expected to conduct the measurement in accordance with the established procedures for measurement of land
and fixing the boundaries. There is no need to remind or advise the Taluk Surveyor about the necessity to identify and locate the properties on the
basis of the relevant land records and the survey-marks at various points, before proceeding with the measurement. Neither the plaintiff, nor the
defendants could compel the Advocate Commissioner and the Surveyor to conduct the measurement in a particular manner which they think to be
proper. It is upto the Advocate Commissioner and the Taluk Surveyor to chalk out the modalities to be followed for measuring out the properties in a
proper and foolproof manner, and to fix the boundaries in accordance with the order of the court. Therefore, the grievance of the plaintiff that the
Advocate Commissioner was not amenable to conduct the measurement in a manner as demanded by him, is totally unfounded. Needless to say that
the request of the plaintiff to remove the Advocate Commissioner for the aforesaid reasons, is totally unsustainable, and the trial court has rightly
rejected the prayer in the above regard. In any case, if after the completion of the local investigation and the filing of Commission Report and Plan, the
plaintiff finds that there were anything objectionable in that report, he could very well move an application under Order XXVI Rule 10 Sub Rule (3)
before the trial court for appropriate curative measures by way of further enquiry, or if the situation so warrants, for setting aside the Commission
Report and Plan.
6. It is well settled that the extraordinary supervisory jurisdiction of the High Court under Article 227 of the Constitution of India, over the subordinate
courts and tribunals, cannot be invoked for every drop of hat whenever parties before such forums are aggrieved by adverse orders passed against
them. Only in cases where the orders of such courts and tribunals are found to be perverse, patently illegal and flagrant abuse in violation of
fundamental principles of law or justice, could the High Court step in, and pass appropriate orders under Article 227 of the Constitution of India to
keep such courts and tribunals within the bounds of their authority, and to see that they do the duty expected or required of them in a legal manner.
7. It has been held by the Apex Court in Garment Craft (M/s) v. Prakash Chand Goel [(2022) 4 SCC 181] that the High Court exercising supervisory
jurisdiction under Article 227 does not act as a court of first appeal to re-appreciate, re-weigh the evidence or facts upon which the determination
under challenge is based. It has been further held thereunder that the supervisory jurisdiction is not to correct every error of fact or even a legal flaw
when the final finding is justified or can be supported. The Hon’ble Supreme Court further observed in the aforesaid decision that the High Court
is not to substitute its own decision on facts and conclusion for that of the inferior court or tribunal, and that the jurisdiction exercised is in the nature of
correctional jurisdiction to set right grave dereliction of duty or flagrant abuse and violation of fundamental principles of law or justice.
8. In Estralla Rubber v. Dass Estate (Pvt) Ltd [(2001) 8 SCC 97], the Apex Court observed as follows in paragraph 6 of that judgment:
“6. The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India is examined and explained in
number of decisions of this Court. The exercise of power under this Article involves a duty on the High Court to keep inferior courts and tribunals within the
bounds of their authority and to see that they do duty expected or required by them in a legal manner. The High Court is not vested with any unlimited
prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the courts subordinate or tribunals. Exercise of this
power and interfering with the orders of the courts or tribunal is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles
of law or justice, where if High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this
Article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not
apparent on the face of the record. The High Court can set aside or ignore the findings of facts of inferior court or tribunal, if there is no evidence at all to justify
or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the court or Tribunal has come to.â€
9. Going by the law laid down by the Apex Court in the above regard upon the scope and ambit of the powers conferred upon the High Courts under
Article 227 of the Constitution of India, Exts.P15, P16 and P23 orders passed by the trial court are beyond the scope of interference in a petition like
the one filed by the plaintiff herein. Therefore, the present Original Petition is bereft of merit.
In the result, the petition is hereby dismissed. Transmit a copy of this judgment immediately to the trial court, for expeditious disposal of the suit.
