IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 3RD SEPTEMBER 2008 / 12TH BHADRA 1930 WP(C).No. 26750 OF 2008(H) -------------------------- OS.442/2008 OF ADDL.SUB COURT, IRINJALAKUDA .................... PETITIONER: ------------ CHALAKUDY N.S.S. EDUCATIONAL CULTURAL CHARITABLE SOCIETY, REG. NO. 254/1980 REPRESENTED BY ITS SECRETARY,P.THARANATHA MENON, AGED 83 YEARS, S/O.LAKSHMIKUTTY AMMA. BY ADV. SRI.RENJITH THAMPAN RESPONDENTS: ------------- 1. E.NARAYANA MENON ,AGED 69 YEARS S/O. KRISHNAN NAIR, VAIRELI HOUSE CHENATHUNADU, KIZHAKKE CHALAKUDY. 2. GOVINDA PANICKER, AGED 72 YEARS S/O.KALLARAKKAL KRISHNAN NAIR CHENATHUNADU, KIZHEKE CHALAKUDY. 3. CHANDRASEKHARAN, AGED 64 YEARS SREENILAYAM, RB ROAD, KIZHEKKE CHALAKUDY. 4. AJITHKUMAR, AGED 42 YEARS S/O. KUZHIKKATTIL KOCHUNARAYANA MENON I.Q.ROAD, KIZHAKKE CHALAKUDY. 5. MOHANAN, S/O. GOURIAMMA POUKKATTU HOUSE, NEAR MADATHAMPILLY TEMPLE KIZHAKKE CHALAKUDY. 6. SADANANDAN, AGED 59 YEARS KUZHIKKATTIL HOUSE I.Q.ROAD, KIZHAKKE CHALAKUDY. (...2/-) WP(C)26750/08 (2) 7. SREEKUMAR, AGED 37 YEARS KUZHIKKATTIL HOUSE I.Q. ROAD, KIZHAKKE CHALAKUDY 8. BALAKRISHNAN , AGED 66 YEARS S/O. THAPPAT MADHAVI AMMA PADINJARE CHALAKUDY. 9. ASHOKKUMAR, AGED 49 YEARS S/O. MELEDATH SANKARAN NAIR PADINJARE CHALAKUDY. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------------ W.P.(C) NO. 26750 OF 2008 ------------------------------------------ Dated this the 3rd day of September, 2008 JUDGMENT This petition is filed under Article 227 of Constitution of India challenging the leave granted by Sub Court, Irinjalakkuda to the respondents/plaintiffs to institute the suit, under Ext.P3 order. Under Ext.P3 order, learned Sub Judge granted leave under Section 92 of Code of Civil Procedure and dismissed I.A.2301 of 2008 filed by plaintiffs for an order of temporary injunction, under order XXXIX Rule 1 of Code of Civil Procedure. 2. It is submitted by the learned counsel appearing for petitioners that the plaintiffs have filed an appeal challenging Ext.P3 order before District Court, Thrissur and it is pending and in this revision only the leave granted is disputed. Being a common order, learned District Judge necessarily has to consider the maintainability of the suit, in view of Section 92 of Code of Civil Procedure. If the leave sought for under Section 92 is refused, an appeal will lie. If it is allowed, no appeal will lie against the order. It if for that reason, as no appeal will lie, WP(C)26750/08 2 petitioners challenged the order granting leave by filing this petition under Article 227 of Constitution of India. If the case of the petitioners in the writ petition is to be allowed and it is to be found that plaintiffs are not entitled to get the leave of the Court sought for, it would definitely terminate the suit as instituted. Therefore if no appeal will lie as provided under Section 115 of Code of Civil Procedure, remedy is to file a revision and not a petition under Article 227 of Constitution of India. Moreover, when an appeal is filed and pending before District Court, Thrissur, challenging the very same common order, whereunder the prayer for temporary injunction was rejected and leave was granted, petitioners are permitted to challenge the question of leave granted under Section 92 also in the pending appeal. If aggrieved, petitioners can challenge that order later. Writ petition is disposed accordingly. M. SASIDHARAN NAMBIAR, JUDGE Okb/-