IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN WEDNESDAY, THE 25TH MARCH 2009 / 4TH CHAITHRA 1931 WA.No. 640 of 2009() -------------------- AGAINST THE JUDGEMENT IN WPC.5447/2009 Dated 06/03/2009 .................... APPELLANT(S): PETITIONER ---------------- ADV.RANI JOY,28/3227, IST CROSS,CHERUPARAMPATH ROAD, KADAVANTHARA,COCHIN-20. BY ADV. SRI.N.D.JOY RESPONDENT(S): RESPONDENTS ------------------- 1. DR.JESS RAPHEAL, PAVANATHARA HOUSE, B-7,4TH FLOOR,JANAKI APARTMENT, K.K.PADMANABHAN ROAD, POWER HOUSE ROAD,ERNAKULAM. 2. STATE OF KERALA,REP.BY SECRETARY, SECRETARIAT,TRIVANDRUM. BY GOVT. PLEADER SRI.R.LAKSHMI NARAYAN. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 25/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMAN & P.S.GOPINATHAN, JJ. ------------------------------- W.A.No.640 of 2009 ------------------------------- Dated this the 25th March, 2009 J U D G M E N T Raman, J. This writ appeal is directed against the judgment of the learned Single Judge in W.P.(C) No.5447 of 2009. 2. The petitioner sought for a writ of mandamus to dispose of I.A.No.1062 of 2009 in O.S.No.1148 o f 1995, on the file of I Additional Sub Court, Ernakulam, and for a further direction to try the suit, O.S.No.1148 of 1995, only if required and if I.A.No.1062 of 2009 is not allowed. The learned Single Judge dismissed the writ petition. In paragraph 3 of the judgment, it was observed that petitioner had filed an application under Section 340 of the Code of Criminal Procedure, it was dismissed by the trial court, and now pending in appeal as Criminal Miscellaneous Case. Therefore, first prayer cannot be granted as it is the same as prayed for in the earlier I.A. It was WA.No.640 of 2009 2 noticed that the civil case was posted to 6.3.2009 and taking into account all the facts and circumstances of the case, though the learned Single Judge was not inclined to entertain the writ petition, accepted the request made by the petitioner for 10 days' time to get ready for trial of the case. The trial was adjourned by 10 days and to fix a date convenient to the Court for trial of the suit in the list. The agreement of the parties to co-operate with the trial was also recorded. Aggrieved thereby, the petitioner in the writ petition has filed this writ appeal. 3. The respondents raised a preliminary objection regarding the maintainability of the writ appeal, inter alia contending that the appeal is not maintainable against the order of the learned Single Judge passed under Article 227 of the Constitution of India. They have placed reliance on a Division Bench decision of this Court in John V.O. v. M/s.Catholic Syrian Bank Ltd. and others (ILR 2009 (1) 596 Kerala series). 4. According to the petitioner, the writ petition was filed invoking the jurisdiction of this Court both under Articles 226 and 227 of the Constitution of India, some of the prayers he WA.No.640 of 2009 3 sought could be granted only under Article 226 of the Constitution of India. Hence, the writ appeal is maintainable. 5. The first prayer in the writ petition is for a direction to the Civil Court to dispose of I.A.No. 1062 of 2009 and the second prayer is to try the suit only if the above I.A. is not allowed. Since what is sought for is a direction to the Civil Court, the power to exercise is under Article 227 of the Constitution of India normally, and not under Article 226 of the Constitution of India. Therefore, if a writ petition under Article 227 of the Constitution is disposed of, the respondents are right in contending that an appeal is not maintainable. But, we do not want to dismiss this case on the question of maintainability alone. Hence, we heard the writ petitioner-appellant. 6. The learned Single Judge has refused to grant the relief sought for after giving reason that a Criminal Miscellaneous Appeal is pending against an order passed by the Civil Court. Be that it may, the present I.A. is only of the year 2009. A writ of mandamus can be issued by this Court only if there is an inordinate delay in disposal of the application pending WA.No.640 of 2009 4 before the court. We do not find any inordinate delay in disposal of the matter. In the above circumstances, we do not think that the judgment of the learned Single Judge in declining the relief as sought for is in any way vitiated by any errors to be corrected in an appeal. The petitioner has a contention that what is sought for in the present I.A. is not the same relief as sought for in the earlier I.A. filed. Since the I.A. is pending before the court below, we refrain from expressing any opinion on the same, as it will not be appropriate to say whether the present I.A. is maintainable or not. It is for the court below to consider the same. Therefore, the observation of the learned Single Judge in that regard is deleted. The writ appeal is accordingly dismissed. P.R.RAMAN, JUDGE P.S.GOPINATHAN, JUDGE. nj.