IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 27TH OCTOBER 2009 / 5TH KARTHIKA 1931 WP(C).No. 30426 of 2009(O) ---------------------------------------- OS.546/2006 of MUNSIFF COURT, KARUNAGAPPALLY .................... PETITIONER(S): ------------------------- D.NEELAKANTAN POTTI, S/O.DAMODHARAN POTTI, PACHAMKULATH ILLAM, THEKKE MURI KIZHAKKU, THAZHAVA VILLAGE, THAZHAVA P.O., KOLLAM DISTRICT. BY ADV. MR.B.KRISHNA MANI RESPONDENT(S): ------------------------- 1. THE DISTRICT COLLECTOR, KOLLAM. 2. PAPPACHAN, PULLAMPALLIL VEEDU, THEKKUM MURI, KIZHAKKAUM MURI, THAZHAVA VILLAGE, KOLLAM DISTRICT. 3. CHINNAMMA, PULLAMPALLIL VEEDU, THEKKUM MURI, KIZHAKKAUM MURI, THAZHAVA VILLAGE, KOLLAM DISTRICT THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss S.S.SATHEESACHANDRAN, J. ----------------------------- W.P.(C).No.30426 OF 2009 -------------------------- Dated this the 27th day of October 2009 ------------------------------------- JUDGMENT The writ petition is filed seeking the following reliefs. i) Call for records leading to Ext.P7 and quash Exts.P4 and P7 by a writ of certiorari or any other appropriate writ, order or direction. ii) Stay all further proceedings leading to O.S No.546/2006 before the Munsiff Court, Karunagappally, until the disposal of this writ petition. iii) Award costs. iv) Any other reliefs this Hon'ble Court deems fit. 2. Petitioners are the plaintiffs in O.S No.546 of 2006 on the file of Munsiff Court, Karunagappally. Suit is for a decree of mandatory injunction for correcting the description of the W.P.(C).No.30426 OF 2009 Page numbers property in the pattayam relating to the plaint property, and also a perpetual prohibitory injunction against the second and third defendants from encroaching upon or committing waste in the plaint proeprty. Ext.P1 is the copy of the plaint. With the suit, the plaintiff moved an application for interim injunction to restrain the defendants 2 and 3 from encroaching upon the plaint property and for an interlocutory injunction against the second and third defendants from effecting any material alteration, putting up of construction, committing waste etc. in the property. That application after hearing both sides was disposed by the learned Munsiff vide Ext.P4 order. The defendants 2 and 3 filed an undertaking before the court agreeing to demolish the construction now being carried on, in case, it is so found necessary, by the court after trial of the suit. Ext.P5 is the undertaking given by the W.P.(C).No.30426 OF 2009 Page numbers second defendant for himself and also on behalf of third defendant, his wife. After disposal of the interlocutory application vide Ext.P4 order, accepting the undertaking of defendants 2 and 3 as indicated above, plaintiff moved an application for reviewing that order. The court below dismissed the review petition holding that there is no error apparent on the face of the record. Ext.P7 is the copy of that order. Propriety and correctness of Ext.P7 order is challenged in the writ petition invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 3. Learned Government Pleader has taken notice for the first respondent. Having regard to the submissions made and taking note of the facts and circumstances presented, I find no notice to the second and third respondents/second and third W.P.(C).No.30426 OF 2009 Page numbers defendants is necessary and hence it is dispensed with. The learned counsel for the petitioner inviting my attention to Ext.P7 contended that the court below has not applied its mind on the review petition canvassed by the petitioner and by one line order, the application has been dismissed holding that there is no error apparent on the face of the record. The decision rendered in a review petition, if it is allowed, can be challenged by way of an appeal under Order 47 Rule 4 of the Code of Civil Procedure is the further submission of the counsel to contend that a reasoned order is expected in a proceeding relating to review. Order 47 is captioned as Review of Judgments. Though the provisions thereunder is applicable to orders passed by the court, needless to point out orders which are open to appeal as covered by Section 104 of the Code of Civil Procedure, that alone, fall within the ambit of Order 47 Rule 4 of the Code of W.P.(C).No.30426 OF 2009 Page numbers Civil Procedure. Petitioner has got a statutory right for filing an appeal against Ext.P4 order passed in their I.A for interim injunction which was disposed by the undertaking given by the defendants 2 and 3. Order over the review petition if decided in their favour would give rise to an appeal by the opposite party cannot be canvassed as a ground that the court below should have passed a speaking order on such petition. When the petitioner is having an efficacious remedy to challenge Ext.P4 order by way of an appeal as provided by Order 43 Rule 1(r), the dismissal of the review petition even if it is not by a reasoned order would not cause any prejudice or injury. The learned counsel for the petitioner realising the difficulty in challenging the correctness of Ext.P7 order for the reliefs canvassed submitted that he may be granted exemption of the time during which the review petition was prosecuted in preferring W.P.(C).No.30426 OF 2009 Page numbers the appeal against Ext.P4 order passed on his interlocutory application for interim injunction. In case the petitioner files an appeal against Ext.P4 order before the appropriate forum within two weeks from the date of this judgment, the court below shall condone the period during which the petitioner prosecuted the review petition leading to Ext.P7 order. Subject to the above observations, the writ petition is closed. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A TO JUDGE vdv