IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 3RD JUNE 2010 / 13TH JYAISTHA 1932 WP(C).No. 17255 of 2010(O) -------------------------- OS.258/1999 of ADDL.SUB COURT, PALAKKAD .................... PETITIONER(S): --------------- MANUELSONS FINANCIAL ENTERPRISES PRIVATE LIMITED, MUNCIPAL OFFICE ROAD, THRISSUR, KERALA STATE REPRESENTED BY ITS MANAGING DIRECTOR P.M.MANUEL, MANUELSONS FINANCIAL ENTERPRISES PRIVATE LIMITED, MUNCIPAL OFFICE ROAD, THRISSUR, KERALA STATE. BY ADV. SRI.O.RAMACHANDRAN NAMBIAR SRI.GEEN T.MATHEW RESPONDENT(S): --------------- 1. SHERLY C.LOOKOSE, D/O. LOOKOSE, PUNNAPADAM, KIZHAKKANCHERRY, ALATHUR TALUK, PALAKKAD DISTRICT. 2. T.R.LAKSHMANAN, S/O.RAMAN, THARAVEETTIL HOUSE, PANNIANKARA, ALATHUR TALUK, VADAKKANCHERRY VILLAGE, PALAKKAD DISTRICT. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Thomas P.Joseph, J. ----------------------------------- W.P.(C) No.17255 OF 2010 ----------------------------------- Dated this the 3rd day of June, 2010 JUDGMENT Petitioner filed O.S.No.258/1999 in the Sub Court, Palakkad for realisation of money from the respondents/defendants by sale of mortgaged property of respondent No.2. That suit was dismissed for default of petitioner following which petitioner filed I.A.2177/2009 for restoration stating that power of attorney holder of petitioner was laid up during the relevant time. Hence he could not appear in court on the relevant date. Learned Sub Judge allowed I.A.2177/2009 as per Ext.P4 order on condition of payment of cost of Rs.2000 to respondent No.2 within the time specified therein and directed that in case cost is not paid within the said time application will stand dismissed. The application was called on 29.2.2008. Petitioner did not pay the cost within the time prescribed. Learned Sub Judge therefore, dismissed I.A.2177/2009. That order is sought to be challenged in this writ petition invoking jurisdiction of this court under Article 227 of the Constitution of India. It is stated that counsel for petitioner had not intimated petitioner about condition imposed by the learned W.P.(C) No.17255 OF 2010 2 Sub Judge, while disposing of I.A.2177/2009 as per Ext.P4 order and hence the condition could not be complied. Petitioner learnt about dismissal of I.A.2177/2009 only when he received notice dated 29.3.2010 from the Special Tahsildar concerned. Learned counsel made a fervent plea to permit petitioner pay cost as ordered on I.A.2177/2009 stating that it was in the facts and circumstances stated above that petitioner could not comply with the said order. 2. There is an ultimate order on I.A.No.2177/2009 dismissing that application for non-payment of cost which is appealable under Order 43 Rule 1(c) of the Code of Civil Procedure (for short, “the Code”), of course petitioner may have to show that it had sufficient cause for not filing the appeal on time since 4½ years have elapsed after I.A.2177/2009 was dismissed. When petitioner has a statutory remedy available under the court, this court must be slow to invoking its jurisdiction under Article 227 of the Constitution. It is not as if petitioner could not under any circumstance challenge correctness of the order of the trial court under Article 227 of the W.P.(C) No.17255 OF 2010 3 Constitution. But petitioner is offering an explanation for not complying with the conditional order on I.A.2177/2009. The petitioner has a case that the final order was passed by the learned Sub Judge without seeking an explanation for non payment of cost. But it is not disputed that the final order was passed in open court on the day the application was posted. There is no case that there was any request for explanation of time. Even when a time limit is prescribed by the court for payment it was within its power to grant further time if a request was made. Petitioner, after 4 ½ years now comes up with an explanation for non payment of cost within the time granted. That is not a matter which this court is required to consider under Section 227 of the Constitution. None of the circumstances stated by the Supreme Court in Abdul Razak v. Mangesh Rajaram Wagle [2010(1) KLT SN 33 (C.No.42)] for invoking that jurisdiction arises here. On going through the order under challenge and the writ petition, I am satisfied that attempt of petitioner is to circumvent the obligation to explain the long delay in case a C.M.Appeal is preferred against the final order on W.P.(C) No.17255 OF 2010 4 I.A.2177/2009 that this writ petition is filed. I am not inclined to entertain the writ petition. Resultantly this writ petition is dismissed but, without prejudice to the right if any of petitioner to take recourse to the statutory remedy provided under the Code against the impugned order. Thomas P.Joseph, Judge. cms