IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 26TH JULY 2011 / 4TH SRAVANA 1933 OP(C).No. 2401 of 2011(O) --------------------------------- IA 1470/2011 IN OS.891/2009 of MUNSIFF COURT, KODUNGALLUR .................... PETITIONERS: ------------------ 1. SUDHEER, S/O.KOLLARA GOPALAN, EDATHIRUTHI PO, KODUNGALLUR TALUK, THRISSUR DISTRICT,PIN 680 703. 2. SUNILKUMAR, ADVOCATE, S/O.THEKKINIYEDATH NADARAJAN MASTER, VALAPPAD, KODUNGALLUR TALUK THRISSUR DISTRICT, PIN 680 703. BY SRI.K.RAMAKUMAR, SENIOR ADVOCATE ADVS.SRI.T.RAMPRASAD UNNI SRI.C.R.REKHESH SHARMA RESPONDENT(S): -------------------- 1. S.N.EDUCATIONAL & CULTURAL SOCIETY CHENDRAPPINNI, KODUNGALLUR TALUK REPRESENTED BY ITS PRESIDENT SUBRAMANIAN, EDAMUTTA PO, KODUNGALLUR TALUK, THRISSUR DISTRICT PIN 680 568. 2. THE PRINCIPAL, S.N.VIDYA BHAVAN SENIOR SECONDARY SCHOOL, CHEDRAPPINNI,KODUNGALLUR TALUK, THRISSUR DISTRICT PIN 680 687 3. THE SECRETARY, S.N.EDUCATIONAL & CULTURAL SOCIETY, CHENDRAPPINNI, KODUNGALLUR TALUK, THRISSUR DISTRICT PIN 680 687. 4. THE TREASURER, S.N.EDUCATIONAL & CULTURAL SOCIETY, CHENDRAPPINNI, KODUNGALLUR TALUK, THRISSUR DISTRICT PIN 680 687. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 26/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs O.P.(C). NO. 24012011 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE APPLICATION DATED 25/05/2011 SUBMITTED BY THE RESPONDENTS BEFORE THE HIGHCOURT IN I.A. NO.7873/2011. P2: COPY OF THE COUNTER AFFIDAVIT IN I.A. NO.7873/2011 IN O.P.C.NO.342/2011. P3: COPY OF ORDER DATED 03/09/2010 IN I.A. NO.2112/2009 IN O.S. NO.891/2009 ON THE FILE MUNSIFF'S COURT, KODUNGALLUR. P4: COPY OF JUDGMENT DATED 10/01/2011 IN CMA NO.43/2010 ON THE FILE OF THE PRINCIPAL SUBORDINATE JUDGE, IRINJALAKUDA. P5: COPY OF JUDGMENT DATED 17/06/2011 IN O.P.C. NO.342/2011. P6: COPY OF ORDER DATED 16/07/2011 IN I.A. NO.1470/2011 ON THE FILE OF THE MUNSIFF'S COURT, KODUN. P7: COPY OF ORDER DATED 11/04/2011 IN I.A. NO.6756/2011 IN O.P.C.NO.342/2011. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A. TO JUDGE. svs THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.2401 of 2011 --------------------------------------- Dated this 26th day of July, 2011 JUDGMENT The dispute concerns right of respondent, a registered society which is running a C.B.S.E school to collect fee at the revised rate which according to them is permitted by the relevant rules of the C.B.S.E bye-law. Two persons representing similarly interested persons filed O.S.No.891 of 2009 before learned Munsiff, Kodungallur invoking order 1, Rule 8 of the Code of Civil Procedure (for short, "the Code”) seeking a decree for prohibitory injunction against first respondent collecting fee at the revised rate. There was also an application for temporary injunction (I.A.No.2112 of 2009) filed by petitioners to restrain respondents from collecting fee at the revised rate. Against the objection preferred by the respondents, learned Munsiff granted an order of temporary injunction which the first respondent challenged in futile before the appellate court in C.M.A.No.43 of 2010. The dismissal of that appeal was challenged in this Court in O.P.No.342 of 2011. While that petition was pending, first respondent filed I.A.No.6756 of 2011 in that petition requiring petitioners to nominate two persons for effective consultation O.P(C).No.2401 of 2011 -: 2 :- with the representatives of the parents' association for a revision of the fee payable. Pursuant to the order passed in that application, according to the first respondent, representatives of the parents' association were consulted in the matter and accordingly Ext.P24, revised rate was prepared. Thereon, first respondent filed I.A.No.7873 of 2011 in O.P(C).No.342 of 2011 stating about subsequent development and requesting this Court to grant an order allowing first respondent to collect fee at the revised rate (as per Ext.P24). This Court heard the said application as well as the original petition and disposed of the same by Ext.P5, judgment dated June 17, 2011. This Court took note of the request raised by the first respondent for permission to collect fee at the revised rate in view of the changed circumstances (ie, alleged consultation with the representatives of the parents' association) and observed that, that is a matter which the trial court has to decide afresh. It was also observed, “In view of the fact that the earlier order was passed in the absence of a consultation as required by the CBSE Affiliation Bye-laws, it will be only appropriate to relegate the matter to the trial court for fresh consideration in the light of what has been stated above”. O.P(C).No.2401 of 2011 -: 3 :- In paragraph 6, this Court directed, “The trial court will consider the prayer now raised before this Court by filing I.A.No.7873 of 2011 afresh and pass appropriate orders thereon in accordance with law, uninfluenced by its earlier order within one month from today. A copy of the OP(C). along with copies of all the exhibits and IAs shall be forwarded immediately to the Munsiff's Court, Kodungallur for its consideration. The trial court will take up the matter on 28.06.2011. The OP(C) is disposed of as above.” 2. Pursuant to the said order, the Registry forwarded a copy of the OP(C) along with a copy of the exhibits and the interlocutory applications (including I.A.No.7873 of 2011) to the Court of learned Munsiff for compliance with the directions contained in Ext.P5, judgment. On receipt of the said documents learned Munsiff renumbered I.A.No.7873 of 2011 as I.A.No.1470 of 2011 (in O.S.No.891 of 2009) and took that application on file. The counter affidavit filed by petitioners to I.A.No.7873 of 2011 forwarded to the learned Munsiff was treated as counter filed by petitioners to I.A.No.1470 of 2011. After consideration of the application in the light of the events that have (allegedly) taken place subsequent to I.A.No.7873 of 2011 and the judgment in O.S.No.43 of 2010 learned Munsiff came to the conclusion that O.P(C).No.2401 of 2011 -: 4 :- first respondent could be permitted to collect fee at the revised rate as per Ext.P24 and accordingly I.A.No.1470 of 2011 was allowed. That order is under challenge in this original petition filed under Article 227 of the Constitution. 3. Learned Senior Advocate appearing for petitioners has raised the following contentions: (1) The trial court has committed a serious irregularity which is unknown to law in registering the I.A filed in the High Court and which was forwarded to it for consideration. No such procedure is contemplated either in the Code of Civil Procedure or Civil Rules of Practice and hence the entire proceeding initiated by the learned Munsiff is illegal. (2) In view of the order on I.A.No.2112 of 2009 as confirmed by the judgment in C.M.A.No.43 of 2010 whereby there is an order directing first respondent to maintain status quo regarding collection of fee, learned Munsiff could not have granted relief sought for in I.A.No.1470 of 2011 which amounts to a review of order on I.A.No.2112 of 2009 as confirmed in C.M.A.No.43 of 2010. This Court while disposing of O.P(C).No.342 of 2011 has not disturbed the order on I.A.No.2112 of 2009 as confirmed in C.M.A.No.43 of 2010 and hence learned Munsiff was not correct in allowing O.P(C).No.2401 of 2011 -: 5 :- I.A.No.1470 of 2011. (3) On the averments made in I.A.No.1470 of 2011, learned Munsiff was not correct in allowing the first respondent to collect fee at the revised rate (as shown in Ext.P24). 4. In response, it is argued by learned counsel for respondents that in view of the judgment in O.S.No.342 of 2009 learned Munsiff was bound to re-register I.A.No.7873 of 2011 in O.P(C).No.342 of 2011, accordingly registered that application as I.A.No.1470 of 2011(in O.S.No.891 of 2009) and that neither the provisions in the Code nor the Civil Rules of Practice prevented learned Munsiff from re-registering the said application in compliance with the judgment of this Court. It is also contended by learned counsel that in view of order 39 of Rule 4 of the Code it was within the power of first respondent to move this court and the trial court to discharge, vary or set aside the order of injunction granted on I.A.No.2112 of 2009 notwithstanding that it was confirmed in C.M.A.No.43 of 2010 provided, there was a change of circumstances as it stood at the time of grant of order of status quo on I.A.No.2112 of 2009. It is contended by learned counsel that since the order is one passed under Order 39 of Rule 4 of the Code, a statutory remedy by way of appeal is available to O.P(C).No.2401 of 2011 -: 6 :- the petitioner under Order 43, Rule 1(r) of the Code and hence petitioners are not entitled to invoke the supervisory jurisdiction of this Court under Article 227 of the Constitution. 5. Since the question of maintainability of the original petition is under challenge, I propose to consider that question as a preliminary point. 6. It is true that on I.A.No.2112 of 2009 learned Munsiff passed order of status quo as regards collection of fee which in effect prevented first respondent from collecting fee as per the revised rate be it as per Ext.P24, or in any other manner. It is not disputed that the said order was confirmed by the appellate court in C.M.A.No.43 of 2010. In O.P(C).No.342 of 2011, what was under challenge was the order on I.A.No.2112 of 2009 and the judgment in C.M.A.No.43 of 2010. It must also be born in mind that the point on which learned Munsiff as well as learned Sub Judge refused request of first respondent to collect fee at the revised rate was because there was no effective consultation with the parents' association as required under the rules of the C.B.S.E bye-law. While O.P(C).No.342 of 2011 was pending in this Court, first respondent filed I.A.No.6756 of 2011 requiring petitioner to nominate two representatives of the parents' O.P(C).No.2401 of 2011 -: 7 :- association so that first respondent could make effective consultation with them in the matter of revision of fee. An order was passed on I.A.No.6756 of 2011 on April, 11, 2011 as per which petitioners were directed to nominate five persons (as representative of the parents association). Pursuant to that order, 5 representatives of the parents association were nominated. Thereafter, first respondent claimed to have made consultation with the said persons. According to the learned counsel for first respondent, letter of consultation was issued to the said 5 persons along with proposed revisions of fee. In the meeting that followed, representatives of the parents' association were not agreeable to the revision of rate as required by the first respondent but, first respondent slashed down the revision of fee by 30% of the original proposal. Based on that proposal, first respondent is said to have revised the rate of fee (Ext.P24). Thereafter, first respondent filed I.A.No.7873 of 2011 in this Court requesting permission to collect fee as per the revised rate (Ext.P24). That application was forwarded to the learned Munsiff for decision. 7. Now the question for consideration is whether the impugned order is amenable to an appeal under Order 43 of Rule O.P(C).No.2401 of 2011 -: 8 :- 1(r) of the Code so that Court should decline to exercise its supervisory jurisdiction under Art.227 of the Constitution. Under Rule 4 of Order 39 of the Code a party against whom an order of injunction is made is entitled to request the Court to discharge, vary or set aside the order of injunction. Here, according to the first respondent, circumstances which existed on the date of passing the order of status quo on I.A.No.2112 of 2009 and judgment in C.M.A.No.43 of 2010 has changed, in that according to the first respondent after effective consultation with the representatives of the parents' association first respondent, as empowered by the relevant clause of the C.B.S.E bye-law has revised the fee rate as per Ext.P24 which according to the first respondent, it is entitled to. It is based on that changed circumstance that first respondent requested this Court and later learned Munsiff to permit first respondent to collect fee as per the revised rate. That request was accepted by the learned Munsiff. In my view, that order amounts to an order under Order 39, Rule 4 of the Code notwithstanding that in I.A.No.7873 of 2011 in O.P(C).No.342 of 2011 and in its new form as I.A.No.1470 of 2011 the provision of law quoted is the Kerala High Court Rules and the specific prayer is not to discharge, vary O.P(C).No.2401 of 2011 -: 9 :- or set aside the order of status quo. I must bear in mind that misquoting of the provision of a law cannot defeat the application itself and the mere fact that the prayer in the application is to permit first respondent to collect fee at the revised rate but, there is no request as such to discharge, vary or set aside the order of status quo, need not deter the court below from granting relief if otherwise first respondent is entitled to. When the first respondent sought permission to collect fee at the revised rate, it, in effect was to discharge, vary and set aside the order of status quo which prevented the first respondent from collecting fee at the revised rate. Viewed in that line, I am inclined to accept the contention of learned counsel for first respondent that the order being one under Rule 4 of Order 39 of the Code, remedy available to the petitioners is by way of statutory appeal under Order 43, Rule 1(r) of the Code. In the view I have taken petitioners have to seek the statutory remedy available to them. I decline to exercise the supervisory jurisdiction under Art.227 of the Constitution. 8. In the circumstances, it is not necessary for this Court to go into other contentions urged by learned Senior Advocate. Those questions are left open for consideration by the O.P(C).No.2401 of 2011 -: 10 :- appropriate court where the appeal if any arising from the impugned order is preferred. Resultantly this original petition is disposed of in the following lines: (i) It is made clear that it is open to the petitioners if they are so advised to challenge the impugned order treating it as one under Rule 4 of Order 39 of the Code by way of appeal under Order 43, Rule 1(r) of the Code. The question whether on the materials on record and facts pleaded learned Munsiff could have granted the impugned order is a matter which petitioners can urge before the appropriate forum. (ii) The contentions raised by learned Senior Advocate in this original petition regarding the procedure adopted by the learned Munsiff in renumbering I.A.No.7873 of 2011 as also all other contentions raised are also left open for consideration by the appellate court in case an appeal is preferred challenging the impugned order. (THOMAS P JOSEPH, JUDGE) Sbna/-