IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 26TH JULY 2010 / 4TH SRAVANA 1932 WP(C).No. 8381 of 2010(O) ------------------------- OS.50/2007 of SUB COURT, OTTAPPALAM .................... PETITIONER(S): --------------- DEVADHAR TRADING CORPORATION,REP.BY MANAGING PARTNER REMA JOSEPH,AGED 55,W/O.JOSEPH GEORGE,MANNARKKAD AMSOM,MANNARKKAD. BY ADV. SRI.G.SREEKUMAR (CHELUR) SRI.K.RAVI (PARIYARATH) RESPONDENT(S): --------------- 1. THE SECRETARY PERUVAMBADAM VIKASANA SAMITHI,JALA NIDHI PROJECT,AKAMBADAM,IDIVANNA POST,CHALIYAR PANCHAYATH,NILAMBUR. 2. THE SECRETARY,CHALIYUR GRAMA PANCHAYATH, ERANJIMANGAD.P.O,AKAMBADAM,NILAMBUR. 3. THE EXECUTIVE DIRECTOR,KERALA RURAL WATER AGENCY,3RD FLOOR,P T C TOWERS,S S KOVIL ROAD THAMBANNUR,TRIVANDRUM. 4. C.S.APPUKUTTAN,CHUNDAKATTIL VEEDU, PERUVAMBADAM,IDIVANNA.P.O,CHALIYAR GRAMA PANCHAYAT NILAMBUR. ADV. SRI.K.M.SATHYANATHA MENON FOR R4 SRI.V.K.BALACHANDRAN FOR R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.8381 of 2010 -------------------------------------- Dated this the 26th day of July, 2010. JUDGMENT This Writ Petition is in challenge of Ext.P2, order directing return of plaint for presentation in the proper court on a finding that in the nature of contentions advanced by both sides it is difficult to believe that respondents would have gone to the office of petitioner to place orders with it and that reason persuaded learned Sub Judge to think that it was vice versa. Learned counsel for petitioner contended that the issue regarding territorial jurisdiction in the factual situation of the case was not something which could have been decided under Order XLI Rule 2 of the Code of Civil Procedure (for short, “the Code”) since it is not a question of law alone but a mixed question of law and fact. It is also contended that learned Sub Judge was not correct in drawing an inference that respondents may not have gone to the office of petitioner to place orders. Learned counsel for respondents contended that Writ Petition is not the remedy against Ext.P2, order since an appeal is provided under Order XLIII Rule 1(a) of the Code. According to the learned counsel for respondents only an appeal could be sustained against the impugned order. 2. Ext.P2, impugned order shows that learned Sub Judge has directed the plaint (though stated in the order as 'suit') to be returned to the petitioner for presentation before proper court. Certainly it is an order coming under Order VII WP(C) No.8381/2010 2 Rule 10 of the Code. That order is appealable under Order XLIII Rule 1(a) of the Code unless procedure specified in Rule 10-A of Order VII of that Code has been followed. Though court below has observed that petitioner is at liberty to file application under Rule 10-A of Order VII of the Code, learned counsel for petitioner states that no such application has been preferred. It follows that the procedure under Order VII Rule 10-A (2) has not been followed in which learned counsel for respondents are correct in their submission that impugned order is appealable under Order XLIII Rule 1(a) of the Code. When a statutory remedy of appeal is available to the petitioner there is no reason why this Court should interfere under Article 227 of the Constitution. Resultantly, without prejudice to the right of petitioner to challenge the impugned order in appeal as provided under law, this Writ Petition is closed. THOMAS P.JOSEPH, Judge. cks