Disposed

Advocate Vinod Natesan v. Tomy Mathew

Kerala HC4 Feb 2022OP(C)/2133/2021

Case brief

AI extract

What is this about?

A malicious prosecution suit was held maintainable against the person who set criminal law in motion, without joining police officials. The court upheld territorial jurisdiction and confirmed the challenged order, permitting defects in the application to amend issues to be cured within seven days.

What did the court decide?

Liberty to cure defects in the application to amend issues within seven days of receiving the judgment; if cured, the Sub Judge shall dispose of it according to law.

Advocate Vinod Natesan Vs Tomy Mathew — Civil Procedure and Limitation | Kerala HC (2022)

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O.P.(C).No.2133/2021

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MRS. JUSTICE M.R.ANITHA

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FRIDAY, THE 4^TH DAY OF FEBRUARY 2022 / 15TH MAGHA, 1943

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OP(C) NO. 2133 OF 2021

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AGAINST THE ORDER/JUDGMENT IN OS 145/2019 OF II ADDITIONAL SUB

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COURT,KOZHIKODE

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PETITIONER:

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ADVOCATE VINOD NATESAN AGED 56 YEARS S/O LATE K.R.NATESAN, PREVIOUSLY OWNER OF THE BRAND CONSULTANCY MAYAN CONSULTANTS INTERNATIONAL, CURRENTLY AN ADVOCATE AT THE HON'BLE HIGH COURT OF BOMBAY, MEMBER OF THE SUPREME COURT BAR ASSOCIATION, RESIDENT OF D-55, MAHINDRA PARK, NARAYAN NAGAR, LBS MARG, GHATKOPAR WEST, MUMBAI-400086. BY ADV ADVOCATE VINOD NATESAN(Party-In-Person)

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RESPONDENTS:

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1 MR.TOMY MATHEW VADAKKANCHERIL S/O MATHEW VADAKKANCHERIL,AGED 58 YEARS, MANAGING DIRECTOR OF ELEMENTS HOMESTEAD PRODUCTS PVT LTD, 4/1418 B, CUSTOMS ROAD, KOZHIKODE, KERALA, INDIA, PIN-673032. 2 THE CITY POLICE COMMISSIONER CALICUT PALAYAM, KOZHIKODE, KERALA-673004, THROUGH THE STATE OF KERALA. (R2 IS DELETED FROM PARTY ARRAY VIDE ORDER DATED 17.11.2021 IN IA 1/2021) BY ADVS. HARISH R. MENON K.T.SHYAMKUMAR A.G.PRASANTH K.S.SREEJA GP SRI ARAVIND. V. MATHEW THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 20.01.2022, THE COURT ON 04.2.2022 DELIVERED THE FOLLOWING:

O.P.(C).No.2133/2021

JUDGMENT

This Original Petition has been filed under Article 227 of the Constitution of India r/w. Section 151 of the Code of Civil Procedure, 1908, seeking to quash the order dated 27 .08.2021 in O.S. No.145 of 2019 and proceedings on 23.07.2021 in O.S.No.145 of 2019 and for quashing the entire proceedings of the said Original Suit on the file of II Additional Sub Court, Kozhikode.

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Petitioner is the defendant in O.S.No.145/2019 filed for damages for malicious prosecution by the respondent/plaintiff.

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As per the averments in the plaint, the respondent/plaintiff (hereinafter be referred as respondent) is the Managing Director of a company named Elements Homestead Product Pvt. Ltd. incorporated under the Companies Act, 1956 engaged in collection, process and sale of Organic and Fair Trace products. The petitioner is running a consultancy service institution in the name and style Mayan Consultants and Mayan Consultants International. It is alleged that respondent engaged the petitioner's consultancy service to prepare a

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marketing plan and promotional material for the launch of petitioner's products in the market. But the petitioner did not honour the assignment and the respondent withdrew the assignment. Respondent advanced Rs.1.5 lakhs to the petitioner and the petitioner alleged to have demanded further payments which was refused by the respondent and a civil suit as S.C.No.817/2015 has been filed by the petitioner before the City Civil Court of Mumbai for recovery of Rs.3 lakhs as contract fee and interest and also for damages of Rs.4,50,000/-. A criminal case also alleged to have been filed against the respondent which is pending as C.C.No.1498/2015 at Metropolitan Magistrate 17^th Court Mumbai alleging defamation. While so the petitioner preferred a complaint before the Police Chief, Thiruvananthapuram against the respondent and in pursuance of the same crime under Section 66(A) of Information Technology Act, 2000 was registered against the respondent. On 30.06.2014 another FIR was registered by Kasaba Police, Kozhikode as crime No.530/2014 against the respondent for the alleged offence under Section 406, 420 r/w. 34 IPC. It was registered based on a private complaint filed by the petitioner before the City Police Commissioner, Kozhikode. The respondent was

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arraigned as the first accused along with others. The complaint was lodged by the petitioner before the City Police Commissioner, Kozhikode which was forwarded to Assistant Commissioner of Police for necessary action. In pursuance of the same, FIR in crime No.530/2014 was registered by Kasaba Police. It is contended that the petitioner preferred the complaint knowing that it is a false complaint with malicious and dishonest intention. Police filed Final Report and the case has been taken on file and the case has been numbered C.C.No.139/2015 on the file of Judicial First Class Magistrate Court, III, Kozhikode. Thereafter the respondent filed Crl.M.C.No.3552/2016 before this Court to quash the proceedings in C.C.No.139/2015, this Court finding that the prosecution if permitted to continue would be an abuse of process of court quashed the proceedings in C.C.No.139/2015. The petitioner preferred Crl.A.No.1593/2018 against the judgment of this Court and the respondent entered appearance before the Hon'ble Supreme Court and the Apex Court was also pleased to dismiss the appeal filed by the petitioner finding that the case raised by the petitioner is not reasonable and probable and is also an abuse of process of law. It is also alleged that

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against the judgment of the Apex Court, petitioner filed a review as R.P.No.62/2019 which was also ended in dismissal. It is alleged that the malicious act of the petitioner caused damage to the reputation and fame of the respondent who is a reputed businessman dealing with originally grown and fairly traded products, regional and fem trade products. He was forced to spent huge amounts in meeting the malicious proceedings of the petitioner. Hence the Suit was filed for damages for malicious prosecution.

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The petitioner appeared in person and filed written statement denying the averments in the plaint and also contended that the suit is not maintainable on the ground of nonjoinder of necessary parties since since commissioner of police who initiated the proceedings is not party to the proceedings. It is also contended that the court lacks territorial jurisdiction since the proceedings were initiated by the petitioner in Trivandrum under Section 66A of Information technology Act 2000 and Crime was registered at Sreekariam Police Station. It is also contended that he is only a witness in the criminal case and hence the court cannot proceed with the suit against the petitioner without the Commissioner of Police as a party to the

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proceedings, who is the complainant in the case. It is also contended that issues have been framed in violation of Order X1V Rl 3 of the Code of Civil Procedure,1908. It is further contended that there is no cause of action for filing the Suit. Other averments which are not germane for the disposal of this matter are not referred here.

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The main argument advanced by the petitioner who appeared in person is on the question of maintainability of the suit for not impleading the Calicut Police (SHO) Kasba as a party to the proceedings. According to the petitioner, he is only a witness in C.C.No.139/2015 and the City Police Commissioner, Calicut at whose instance the FIR was registered and investigation is conducted is a necessary party and without making the SHO Kasba Police Station and the State of Kerala as a party, the suit is not maintainable.

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Petitioner would also contend that the complaint was filed by him before the Police Chief, Thiruvananthapuram and accordingly FIR in crime No.494/2014 was registered by Sreekaryam Police Station, Thiruvananthapuram under Section 66 A of the Information Technology Act, 2000 and subsequently on the advice of police personal at Medical College Police

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Station while recording the statement of the petitioner, petitioner send an email to City Police Commissioner, Calicut which led to the registration of the crime at Calicut and hence actually he was not the person at whose instance the crime was registered by Kasaba police at Calicut.

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The petitioner in this context placed reliance on National Textile Workers' Union etc. v. P.R. Ramakrishnan And Others [1983 AIR 75: 1983 SCC (1) 228] and also Deputy Commissioner, Hardoi v. Rama Krishna Narain and Others [1953 AIR 521 as well as Zenit Metaplast P. Ltd V State of Maharashtra and Ors (Civil Appeal No. ... of 2009 (Arising out of SLP (civil) No.18934 of 2009].

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The learned counsel for the respondent/plaintiff on the other hand would contend that the petitioner has filed the complaint and he has set the law in motion and damages has been sought against the petitioner and no relief has been sought against the SHO Kasba. It is also contended that respondent/Plaintiff is the master of the litigation and it is upto him to decide as to who are all to be made parties to the suit. The learned counsel also relies on Kunhukutty Sahib v. Veerankutty [1960 KLT 312] Subramanya Bhatta v. Krishna

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Bhatta [1978 KLT 361 (F.B.)], Kunhikannan Nambiar K.K. v. M.V.Prabhakaran [2009 (3) KHC 114].

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Mehrotra's Commentary on Law of Defamation,

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Damages, Malicious Prosecution, 7^th Edition, Part-II, Chapter-I starts with general aspect of malicious prosecution as follows :-

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“Malicious prosecution is a tort, the liability of which consists in improperly instituting unsuccessful criminal proceedings for an improper purpose and without reasonable and probable cause. An action for damages can be maintained for the abuse of such legal process.”

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Law of Defamation and Malicious Prosecution Second Edition by H.P. Gupta in page Nos. 370 and 371 deals with malicious prosecution. In which the ingredients to be proved by the plaintiff in an action for malicious prosecution provided are: (1) that he was prosecuted by the defendant; (2) that the prosecution terminated in favour of the plaintiff; (3) that the prosecution was malicious; and (4) that it was without reasonable and probable cause.

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For raising the question of maintainability of the suit, as stated earlier, one of the main contention is with regard to the non-joinder of necessary parties since the SHO Kasba Police

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Station, Calicut is not a party to the proceedings. The petitioner in this context relies on National Textile Workers' Union's case. But on going through the said decision, it could be seen that the question arose in that case is with regard to the right of the workmen employed in a company to appear and oppose a petition for winding up of the company. The controversy between the parties arises out of a petition for winding up a private limited company called Ramakrishna Industries (P) Limited. It was a closed company in which there are two groups of shareholders, one group consisting of respondent Nos. 1 to 5 and the other consisting of respondent Nos 7 to 14. There was serious dispute between Respondent nos. 1 to 5 on the one hand and Respondent nos. 7 to 14 on the other with regard to the management of the affairs of the company. Since the dispute could not be settled amicably, Respondent nos. 1 to 5 filed a petition for winding up the Company. One of the grounds was that the Company is unable to pay its debts and the other was that it is just and equitable that the Company should be wound up. Immediately on filing the winding up petition Respondent nos. 1 to 5 submitted an application for an interim injunction and on that application, an ex parte order was passed by the learned

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Company Judge restraining the Company which was respondent no. 6 in the winding up petition as also Respondent nos. 7 to 14 from borrowing any monies from banks, financial institutions or others without the prior permission of the Court and from alienating and/or creating any charge or encumbrance over any of the assets of the Company in its various enterprises. As a consequence of the ex parte order of injunction the Jotie Mills Employees Co-operative Store stopped issuing any provisions or supplies to the workmen and the workmen were also unable to enjoy the benefits under the Employees State Insurance Scheme. The workmen also apprehended that on account of the ex parte order of injunction, they may not be able to get their wages which were due to be paid. Some of the workmen were members of the National Textile Workers Union, some others were members of the Coimbatore District National Textile Employees Union while still some others were members of the Coimbatore District Engineering Workers Union. Coimbatore District National Textile Employees Union in order to protect the interest of its members made an application as Company Application for impleading itself as a respondent. The other workers' union also filed similar petitions before the Company Judge seeking for

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permission to intervene in the winding up petition and to effect the ex parte order of injunction. Respondent nos. 1 to 5 filed objection contending that the above unions have no locus standi to appear and oppose the winding up petition, since the workmen who were members of three unions were neither creditors nor contributories of the company. The Company Judge after hearing all the arguments, rejected those applications on the ground that under the Companies Act 1956, the workmen had no right either to get impleaded in the winding up petition or even to intervene in the winding up petition. The National Textile Workers Union preferred an appeal before a Division Bench of the High Court and the Division Bench also took the same view and rejected the appeal which led to the filing of Special Leave Petition before the Apex Court by the National Textile Workers Union. The question arose before the Apex Court was whether when a petition for winding up a company is filed in court, are the workmen of the company entitled to ask the court to implead them as parties in the winding up petition or to allow them to appear and contest the winding up petition or they have no locus standi at all so far as winding up petition is concerned though the result of the winding up petition may be to

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bring about termination of their services and thus affect them vitally by depriving them of their means of livelihood. While disposing the matter, the Apex Court ultimately allowed it as follows”

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“We are therefore of the view that the workers are entitled to appear at the hearing of the winding up petition whether to support or to oppose it so long as no winding up order is made by the court. The workers have a locus to appear and be heard in the winding up petition both before the winding up petition is admitted and an order for advertisement is made as also after the admission and advertisement of the winding up petition until an order is made for winding up the company. If a winding up order is made and the workers are aggrieved by it, they would also be entitled to prefer an appeal and contend in the appeal that no winding up order should have been made by the Company Judge. But when a winding up order is made and it has become final, the workers ordinarily would not have any right to participate in any proceeding in the course of winding up the company though there may be rare cases where in a proceeding in the course of winding up, the interest of the workers may be involved and in such a case it may be possible to contend that the workers must be heard before an order is made by the court. We think that even when an application for appointment of a provisional liquidator is made by the petitioner in a winding up petition, the workers would have a right to be heard if they so wish because the appointment of a provisional liquidator may adversely affect the interest

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of the workers. But we may make it clear that neither the petitioner nor the court would be under any obligation to give notice of such application to the workers. It would be for the workers to apply for being heard and if they do so, they would be entitled to appear and be heard on the application for appointment of provisional liquidator.”

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So on going through the above, there would not be any doubt to conclude that it has no application at all to the fact situation of this case. In that case the Apex Court was actually dealing with the rules of audi alterum partem which mandates that no one shall be condemned unheard, one of the basic principles of natural justice and if this rule has been held to be applicable in a quasi-judicial or even in an administrative proceeding involving adverse civil consequences, it would a fortiori apply in a judicial proceeding such as a petition for winding up of a company. It is also found that a system of law which is designed to promote justice through fairplay in action can permit the court to make a winding up order which has the effect of bringing about termination of the services of the workers without giving them an opportunity of being heard against the making of such order since it would be violative of the basic principle of fair procedure and unless there is express

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provision in the Companies Act, 1956 which forbids the workers from appearing at the hearing of the winding up petition and participating in it, and hence the workers was held entitled to appear and be heard in the winding up petition.

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Zenit Metalplast P. Ltd relied on by the petitioner has no relevance in the case on hand because in that case application for the land by the appellant a Pvt Ltd Co was rejected by the Maharashtra Industrial Corporation without assigning any reason. Where as the Govt of Maharashtra promised on an application of the 4^th respondent, M/S Maheendra & Maheendra Ltd, that 2^nd respondent would provide maximum possible vacant land in the existing land and ultimately land was allotted to 4^th respondent by changing the user of land. Alleging violation of right of equality guaranteed under Article 14 of the Constitution of India appellant approaches the High Court. But the High Court did not grant any interim relief and the appellant approached the Apex Court. Para No.22 and 23 are relavant which reads thus :

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“22. In a case like this, when the applicant approaches the Court complaining against the Statutory Authority alleging arbitrariness, bias or

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favouritism, the court, being custodian of law, must examine the averments made in the application to form a tentative opinion as to whether there is any substance in those allegations. Such a course is also required to be followed while deciding the application for interim relief.

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Interim order is passed on the basis of prima facie findings, which are tentative. Such order is passed as a temporary arrangement to preserve the status quo till the matter is decided finally to ensure that the matter does not become either infructuous or a fait accompli before the final hearing. The object of the interlocutory injunction is, to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial. (vide Anand Prasad Agarwall v. State of Assam vs. Tarkeshwar Prasad & Ors. AIR 2001 SC 2367 ; and Barak Upatyaka D.U. Karmachari Sanstha (2009) 5 SCC 694).”

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So the question in that case was about the necessity of passing an interim order when applicant approaches the court complaining arbitrariness,bias, favouritism etc. It has no relevance to the case in hand. So also Deputy Commissioner,

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Hardoi v. Rama Krishna Narain and Others cited by the petitioner has no application to the case in hand.

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In the present case, the petitioner would content about the maintainability of the suit for want of impleading the Police officials as a party to the proceedings. As rightly contended by the learned counsel for the respondent no relief has been sought by the respondent against the Kasaba Police and it is his specific contention that it is the petitioner who set the law in motion and at his instance the crime was registered and investigated and Final Report was filed against the respondent and hence no relief as such has been sought for against the police officials and hence the SHO, Kasba who registered the crime and conducted the investigation and filed Final Report is not at all a necessary party to the proceedings.

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The learned counsel placed reliance on Kunhukutty Sahib's case and in paragraph No.39 of the said judgment there is an elaborate discussions of the case law in the field by quoting Narasinga Row v. Muthaya Pillai [I.L.R. 26 Mad.362]. The Privy Council does not accept the broad proposition laid down in Narasinga Row's case that a person will be a prosecutor only if he moves a Magistrate by filing a complaint. It is also held that

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notwithstanding the fact that a person has not been figured as a complainant before a Magistrate, he can nevertheless be a prosecutor if the circumstances mentioned in the judgment referred therein are present. It is also discussed that notwithstanding the fact that a party gave only some information to the police on the basis of which the police starts investigation laid a charge sheet against the person mentioned by the informant that party is a prosecutor if the charge is false to the knowledge of the complainant. It is also emphasized that if the charge is false to the knowledge of the complainant he will certainly be liable for the consequences of this false complaint and in such case it will be no defence for such person to merely say that the actual prosecution is instituted and conducted by the police. A distinction is also made in a case where a person who merely give some information to the police on the basis of which police starts investigation and ultimately laid a charge against the person who according to them may be involved in a particular occurrence. It cannot be said that such a person who merely laid information to the police without anything more can be considered to be a prosecutor unless he mislead the police by bringing suborned the witnesses to support it and influences the

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police to assist him in sending an innocent man for trial before the Magistrate.

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In Subramanya Bhatta the ingredients to be proved by the plaintiff in an action for malicious prosecution as well as the test for determining who is a prosecutor has been dealt with in detail. In paragraph No.9 it has been discussed that on the facts of that case there is little difficulty in holding that the defendant was the prosecutor even judged by the rigorous standards of active association with the prosecution. He had filed Ext.A1 complaint. He was not quiescent thereafter. He moved the Sessions Judge in revision against Ext.A3 order treating the case as a crime case and he sought to get himself impleaded in the criminal revision petition before the High Court and to intervene in the hearing and examined himself as a witness in the Sessions trial.

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In Kunhikannan Nambiar a learned single Judge of this Court again considered the question as to who is the prosecutor in a suit for malicious prosecution. Paragraph 5 of the said decision reads as follows :-

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“It is not necessary that the defendant should himself prosecute the plaintiff by filing a criminal

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complaint against him before the Magistrate. It is enough if on the information given by the defendant the Police prosecutes the plaintiff by filing a charge sheet against the plaintiff. In order to become a prosecutor it is not necessary that the defendant should move the Magistrate by filing a complaint. Likewise, it is not necessary that the defendant should figure as a complainant before the Magistrate. It is enough if the defendant had either set the criminal law in motion or had taken an active part in the conduct of the prosecution itself and the same was without any justification (vide Gaya Prasad v. Bhagat Singh, ILR 30 Allahabad 525 PC, Balbaddar v. Badri Shah, 1926 PC 46, Kunhukutty Sahib v. Veerankutty, 1960 KHC 79 : 1960 KLT 312 : 1959 KLJ 1172 : ILR 1960 Ker. 557 : AIR 1960 Ker. 264).”

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So the above principles would lay down the law that it is not necessary that the defendant in a suit for malicious prosecution should figure as a complainant before the magistrate. It is enough if the defendant had either set the criminal law in motion or had taken an active part in the conduct of the prosecution itself and the same was without any justification.

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The word 'prosecute' is not defined under the Code.

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English-English-Malayalam dictionary by T. Ramalingam Pillai gives the meaning of 'prosecute' as to institute a legal proceedings.

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The meaning of word 'Prosecutor' as per the New International Webster's Comprehensive Dictionary Encyclopaedic edition page 1013 (as quoted in the law of defamation and malicious prosecution referred above by H.P.Gupta) is (1) one who prosecutes in any sense (2) law (a) one who institutes and carries on a suit, especially a criminal suit (b) a prosecuting attorney.

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In this case the petitioner is the person who filed the complaint originally before the Police Chief, Thiruvananthapuram which subsequently on the basis of question of jurisdiction forwarded to District Police Chief, Calicut by the Police Chief, Thiruvananthapuram and subsequently the crime was registered in Kasaba Police Station against the respondent. So it is the petitioner who sets the law in motion.

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Admittedly by the petitioner, the respondent moved this Court by filing Crl.M.C 3552/2016 and as per the order dated 02.12.2016 this Court quashed the proceedings against the respondent finding that if the prosecution is permitted to

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continue it will be a clear case of abuse of powers of court and Final Report is quashed accordingly. Copy of the said order has been produced as Ext.P16. Against which, petitioner moved the Apex Court by filing Crl.A.No.1593/2018 and as per the judgment dated 11.12.2018 the Hon’ble Apex Court found that continuation of criminal proceedings against the respondent herein would be an abuse of process of law and the High Court has rightly exercised the powers under Section 482 of Cr.P.C and has rightly quashed the criminal proceedings and accordingly the appeal was dismissed. Ext.P22 is the copy of that judgment. It is alleged in the plaint that subsequently petitioner filed a review petition and that was also happened to be dismissed So the above factors would go to show that the petitioner was actively prosecuting the matter against the respondent and hence he can very well be termed as the prosecutor in the facts and circumstances of this case.

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It is true that the petitioner would also contend that the respondent was never disturbed by the Calicut police and the respondent was hiding and could not be arrested and never attended the court even once during the entire two years of hearing and hence according to him the mental stress alleged to

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have suffered on account of fear of wrongful arrest and imprisonment is ridiculous and would show that the suit is an abuse of process of court and product of fraud.

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The settled position of law as pointed out earlier would specifically provide that in order to maintain a suit one of the ingredients to be proved is that the plaintiff was prosecuted by the defendant and the prosecution was terminated in favour of plaintiff . Whether it is malicious or not are all matters which are to be determined after taking evidence.

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So institution of legal proceeding at the instance of the petitioner has been established by the fact of filing a complaint and registration of the crime at his instance. The proceedings in the Crl.M.C before this Court terminating the prosecution in favour of the first respondent/plaintiff would prove the next ingredient also to initiate the proceedings for malicious prosecution. So the fact that the respondent never appeared before the court in the two years nor arrest warrant was issued etc are all immaterial.

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The other ingredient like whether the respondent acted with out any reasonable or probable cause ,whether the respondent in prosecuting has actuated with malice,whether the

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respondent suffered any special damage etc. are factors which relates to the merits of the case ,which can be decided only after taking evidence and can not be decided at this stage.

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With regard to the contention of the petitioner of territorial jurisdiction of the courts at Calicut as has been rightly found by the court below the Final Report was filed and case is pending before the Judicial First Class Magistrate Court-III, Kozhikode.

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Section 19 of the Code of Civil Procedure, 1908, deals with place of suing for compensation for wrongs to person or movables which reads as follows :-

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"19. Suits for compensation for wrongs to person or movables - Where a suit is for compensation for wrong done to the person or to movable property, if the wrong was done within the local limits of the jurisdiction of one court and the defendant resides or carries on business or personally works for gain, within the local limits of the jurisdiction of another court,the suit may be instituted at the option of the plaintiff in either of the said Courts.

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Criminal case has been registered and final report was filed against the respondent before the judicial first class

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magistrate court 111 Kozhikode and the case is pending trail before that court. So the wrong alleged to have been done to the respondent which resulted in suing for malicious prosecution is within the local jurisdiction of sub Court Kozhikode . Hence it is also a court having jurisdiction to try the suit. It is true that suit can also be filed where the defendant/ petitioner resides or carries on business or works for gain . But the option is of the plaintiff/respondent. So the Additional Sub Court is the court with in its jurisdiction the wrong is alleged to have been committed. So it is a place of suing as per law. So the contention with regard to the territorial jurisdiction of Sub Court, Calicut is also baseless and does not require any consideration at all.

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Next contention of the learned counsel is with regard to the framing of issues in violation of Order XIV Rule 3 of the Code of Civil Procedure read with Rule 109 of the Civil Rules of Practice Kerala. It is contended by the petitioner that he has filed petition as Ext.P35 for amendment of issues as per Order XIV Rule 5.

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In this context, the learned counsel for the respondent would contend that the said interlocutory application has not been numbered. The copy of the interlocutory application

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produced before this Court also does not contain any number. The petitioner also could not state the number of I.A alleged to have been filed seeking for amendment of the issues framed. So also as per Rule 5 of Order XIV wide discretion has been given to the court to amend the issues or frame additional issues at any time before passing a decree as may be necessary for determining the matters in controversy between the parties upon such terms as at thinks fit. So also the sub-rule (2) of Rule 5 speaks about the powers of the court to strike out any issue appeared to have been wrongly framed or introduced at any time before passing a decree. So if at all the petitioner has any grievance with regard to the framing of issues it is open for the petitioner to highlight the matter before the sub court and the court may number the interlocutory application, which is produced as Ext.P35. If at all it is in defect the petitioner has to cure the defect and re-present the same within seven days of receipt of a copy of this judgment.

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The petitioner also seeks to quash the proceedings in O.S.No.145/2019 since it is an abuse of process of court. In view of the findings above-made this point actually does not arise.

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Learned counsel for the respondent also brought to my

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attention a decision of the Apex Court in Jacky v. Tiny @ Antony & Ors. [Civil Appeal No.4453/2014 arising out of SLP No.3909/2012]. That was an appeal preferred by the plaintiff against the judgment and order dated 27.10.2011 passed by the High Court of Kerala in O.P.(C)No.1792/2011 by which while this Court exercising the powers under Sections 226 and 227 of the Constitution of India set aside the plaint and further proceedings initiated on the basis of the plaint in the suit and quashed the order and imposed cost of Rs.25,000/- on the appellant for payment in favour of the respondent-writ petitioner. The Apex Court while considering the powers of the High Court under Article 226 and 227 of the Constitution of India as to whether it would enable this Court to set aside the plaint ,it has been held that if a suit is not maintainable it fell within the jurisdiction of the High Court to decide the same in appropriate proceedings. But in no case power under Article 226 and 227 of Constitution of India can be exercised to question a plaint. It is also held that the High Court under Article 227 has a jurisdiction to ensure that all subordinate courts as well as statutory or quasi-judicial tribunals, exercise the powers vested in them, within the bounds of their authority. But it was not the case of the respondent

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therein that the order passed by the Munsiff Court was without any jurisdiction or was so exercised exceeding its jurisdiction.

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In the present case though the petitioner made a vain attempt to challenge the territorial jurisdiction of the Sub Court it was found against. Nothing also could be brought out by the petitioner to prove that the order passed by the Sub Court is perverse or otherwise it has failed to exercise its jurisdiction or exceeded its jurisdiction in passing the impugned order.

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In the result, Original Petition disposed of confirming the order in O.S.No.145/2019 dated 27.08.2021 of the Sub Court II, Kozhikode. It is open for the petitioner to cure the defect in the unnumbered I.A. produced as Ext.P35 for amendment of issues within 7 days of receipt of copy of this judgment, and if so done, the sub judge shall dispose of the same in accordance with law.

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Sd/-

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M.R.ANITHA, JUDGE

shg

O.P.(C).No.2133/2021

APPENDIX OF OP(C) 2133/2021

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PETITIONER EXHIBITS Exhibit P1 IMPUGNED ORDER OF THE HON'BLE SUB COURT CALICUT, IN ORIGINAL SUIT 145 OF 2019, DATED 27TH AUGUST 2021. PLAINT HELD MAINTAINABLE. Exhibit P2 IMPUGNED ORDER OF THE HON'BLE SUB COURT CALICUT, IN ORIGINAL SUIT 145 OF 2019, DATED 23RD JULY 2021, FRAMIBNG OF ISSUES. Exhibit P3 TRUE COPY OF THE O.S.145/2019 FILED ON 5.11.2019, BEFORE THE HON'BLE SUB COURT II AT KOZHIKODE BY R1... Exhibit P4 PROFESSIONAL PROFILE OF THE PETITIONER... Exhibit P5 COPY OF THE INVOICE DTED 06.03.2014 PAID IN PART BY THE R1... Exhibit P6 OFFER OF CONTRACT SENT BY R1 ON 31.03.2014 BY EMAIL... Exhibit P7 ACCEPTANCE OF CONTRACT BY PETITIONER VIDE EMAIL ON 01.04.2014... Exhibit P8 APPRECIATION OF DESIGNS BY R1.VIDE EMAIL OF 17.04.2014.... Exhibit P9 DEFAMATORY EMAIL BY R1.SENT ON 26.04.2014..... Exhibit P10 TRUE TYPED TRANSLATED FIR 0494/14 OF SREEKARIAM P.S.TRIVANDRUM... Exhibit P11 EMAIL CORPORATION TO CALICUT POLICE COMMISSIONER DATED 18.05.2014 FROM P.... Exhibit P12 RECOMMENDATION OF ACP CRIME.DETACHMENT CALICUT DATED 16.06.2014... Exhibit P13 TRUE TYPED TRANSLATED FIR 530/14 OF THE KASABA P.S.DATED 30.06.2014.... Exhibit P14 TRUE TYPED TRANSLATED F.R.89/15 OF THE KASABA P.S DATED 24.1.2015.... Exhibit P15 ROZNAMA OF THE JFCM-III, KOZHIKODE IN CC 139 OF 2015, FROM 6.4.2015 OF 3.01.2017. Exhibit P16 TRUE COPY OF THE ORDER OF THE HON'BLE HIGH COURT OF KERALA DATED 02.12.2016 OF CRLMC 3552 OF 2016. Exhibit P17 TRUE COPY OF THE CERTIFIED COPOY OF THE DOCKET OF CRLMC 3552 OF 2016, DICTATION MADE TO STENO "LAKSHMI" BY HON'BLE HIGH COURT AND NOTING ON DOCKET....

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O.P.(C).No.2133/2021

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Exhibit P18	SCREEN SHOT. WHATSAPP MESSAGE OF ADVOCATE MATHEW SKARIA.DATED.02.12.2016....
Exhibit P19	TRUE COPY OF THE REGISTRY STAMP IN CRLMC NO.3552 OF 2016.FINAL ORDER COPY OF 4.1.2017
Exhibit P20	ORDER OF THE HON'BLE SUPREME COURT OF INDIA OF 20.11.2017 IN SLP (CRI)DIARY NO.9242/2017 CORRECTING RECITALS IN THE HON'BLE HIGH COURT RECORDS...
Exhibit P21	ORDER OF THE HON'BLE SUPREME COURT OF INDIA OF 23.02.2018 IN SLP(CRI)DIARY NO.9241/2017 ADMITTING THE SLP OF THE PETITIONER.
Exhibit P22	ORDER OF THE HON'BLE SUPREME COURT OF INDIA DATED 11.12.2018, IN CRIMINAL APPEAL NO:1593 OF 2018, DISMISSING THE APPEAL OF THE PETITIONER...
Exhibit P23	WEB PAGE COPY.CRIMINAL ST 2628/2015 PENDING AGAINST THE R1 AT THE JFCM IV CALICUT UNDER THE FOOD ADULTERATION ACT....
Exhibit P24	WEB PAGE COPY.CRIMINAL ST 2664/2017 PENDING AGAINST THE R1 AT ETTUMANOOR JFCM I UNDER ALL INDIA SERVICES, D.A.RULES(18(1),2,4,6...
Exhibit P25	COPY OF THE ORDER OF THE HON'BLE HIGH COURT OF KERALA DATED 23.7.2010 IN WP(C)23184/2010.CHECK POST LORRY SEIZURE U/S KVAT OF THE R1.
Exhibit P26	COPY OF THE NOTICE OF MOTION 585/2020 IN SC SUIT 817/2015 U/S 193, 209 IPC AGAINST THE R1 IN HON'BLE CITY CIVIL COURT, MUMBAI....
Exhibit P27	COPY OF THE PURPORT OF PROCEEDINGS AT THE HON'BLE SUB COURT IN CALICUT IN OP 145 OF 2019.
Exhibit P28	COLLY.COPY OF THE INTERIM APPLICATION NO: 2 OF 2020, DATED 18.06.2020 WITH APPLICATION TO INCLUDE ANNEXURE D, FILED ON 19.06.2020.
Exhibit P29	COPY OF THE APPLICATION ON 19.08.2020, TO ALLOW THIS PETITIONER TO APPEAR VIDE VIDEO CONFERENCE GIVEN COVID RESTRICTIONS
Exhibit P30	COPY OF THE INTERIM APPLICATION OF 21.08.2020, PRAYING THAT THE PRAYERS C AND D OF INTERIM APPLICATION 2 OF 2020, BE ADJUDICATED.
Exhibit P31	COPY OF THE WRITTEN STATEMENT FILED BY THE DEFENDANT IN THE IMPUGNED SUIT/PETITIONER HEREIN IN 17TH SEPTEMBER 2020.

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O.P.(C).No.2133/2021

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Exhibit P32	PROTEST PETITION FILED BEFORE THE PRINCIPAL JUDGE OF THE CALICUT COURT, KOZHIKODE, DATED 13TH FEBRUARY 2021, REGARDING IRREGULARITIES.
Exhibit P33	WRITTEN ARGUMENTS FILED BY THE PETITIONER WITH THE HON'BLE SUB COURT II CALICUT, AFTER THE HEARING ON 25.8.2021.
Exhibit P34	APPLICATION FILED BY THE PETITIONER PRAYING FOR A JUDICIAL ENQUIRYBEFORE THE HON'BLE SUB COURT II CALICUT, RESUMBITTED ON 28.9.2021.
Exhibit P35	APPLICATION FILED BY THIS PETITIONER PRAYING FOR AMENDMENT TO THE ISSUES FRAMED FILED BEFORE THE HON'BLE SUB COURT II CALICUT, RESUBMTTED ON 4.10.2021 BY SPEED POST
Exhibit P36	ORDER OF THIS HONOURABLE HIGH COURT IN O.P.CIVIL 798 OF 2020, DATED 18.03.2020, ALLOWING THIS PETITIONER TO WITHDRAW HIS PETITION AND GRANTING HIM LEAVE TO RE FILE.

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//TRUE COPY//

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PA TO JUDGE

Advocate Vinod Natesan v. Tomy Mathew

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Advocate Vinod Natesan v. Tomy Mathew

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