IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 26TH MAY 2010 / 5TH JYAISHTA 1932 WP(C).No. 16209 of 2010(O) -------------------------- OS.1275/2001 of I ADDL.MUNSIFF COURT.,TRIVANDRUM .................... PETITIONER: --------------- 1. JAGAL PRASAD, AGED 69 YEARS, S/O.V.K.PANICKER, RESIDING AT PANICKERS, M.N.H.5, MALLOOR NAGAR, VAZHUTHACAUD, THIRUVANANTHAPURAM. 2. REVAMMA, AGED 57 YEARS, D/O.KAMALAKSHI, RESIDING AT PANICKERS, M.N.H.5, MALLOOR NAGAR, VAZHUTHACAUD, THIRUVANANTHAPURAM. BY ADV. SRI.B.HARISH KUMAR RESPONDENTS: --------------- 1. SHEELA, D/O.RAJAMMA, T.C.14/1045, RAJEEV NAGAR, VAZHUTHACAUD, THIRUVANANTHAPURAM. 2. RAJAMMA, D/O.PANKAJAKSHI AMMA, HINDU, T.C.14/1045, RAJEEV NAGAR, VAZHUTHACAUD, THIRUVANANTHAPURAM. 3. SOMAN NAIR, T.C.14/1045, RAJEEV NAGAR, VAZHUTHACAUD, THIRUVANANTHAPURAM. 4. SARALA, W/O.CHANDRACHUDAN NAIR, SARALA BHAVAN, T.K.G.N.ROAD, VAZHUTHACAUD, THIRUVANANTHAPURAM. 5. CHANDRACHUDAN NAIR, SARALA BHAVAN, T.K.G.N.ROAD, VAZHUTHACAUD, THIRUVANANTHAPURAM. 6. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, VAIDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM. 7. ASSISTANT EXECUTIVE ENGINEER, ELECTRICAL MAJOR SECTION, VELLAYAMBALAM, THIRUVANANTHAPURAM. 8. KERALA WATER AUTHORITY REPRESENTED BY ITS MANAGING DIRECTOR, THIRUVANANTHAPURAM 9. GOPI, S/o. THANKAPPAN T.C.14/337, TKGN ROAD, RAJEEV NAGAR VAZHUTHACAUD, THIRUVANANTHAPURAM 10.PARUKUTTY AMMA, SIVA PRIYA SANKARA ROAD SASTHAMANGALAM , THIRUVANANTHAPURAM 11.SELVI AMMAL, T C 14/610, KAVITHA BHAVAN PALAYAM, THIRUVANANTHAPURAM ADV. SMT.AMBIKA DEVI, SC, KWA FOR R8 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- W.P.C.No. 16209 of 2010 --------------------------------------- Dated this 26th day of May, 2010 JUDGMENT Plaintiffs in O.S.No.1275 of 2001 of the court of learned Additional Munsiff-I, Thiruvananthapuram are the petitioners before me. They want this court to invoke its jurisdiction under Article 226 and 227 of the Constitution and issue a writ of certiorari or other appropriate writ to quash Ext.P1, application in O.S.No.1275 of 2001 of the court of learned Additional Munsiff, Thiruvananthapuram. That was a suit for fixation of boundary and recovery of possession. It would appear that during pendancy of the suit respondents made a counter claim which learned Munsiff rejected as per Ext.P6 but while disposing of the suit as per Ext.P1, judgment, the suit was dismissed and the counter claim was decreed. It is also the contention of petitioners that the suit was dismissed flouting the direction issued by this court in Ext.P4, judgment to appoint an advocate commissioner to identify item Nos. 2 and 3 of plaint schedule with reference to the title deed and submit further report considering the objection raised in I.A.No.8302 of 2006. Yet another argument advanced by learned counsel is that it is not the officer who pronounced the judgment W.P.C.No.16209 of 2010 : 2 : who has signed the same though, the officer who pronounced judgment was available at station as is revealed from the name of the officer given in the cause title of the judgment. Learned counsel has invited my attention to the requirement of Order 20 Rule 3 of the Code of Civil Procedure. 2. I am not at the question whether irregularity pointed out by learned counsel affected merit of Ext.P1, judgment. The question for consideration is whether petitioner should be permitted to challenge Ext.P1, judgment which of course is followed by a decree as well by invoking jurisdiction of this court under Article 226 and 227 of the Constitution. A constitution bench of the Supreme Court in Naresh Shridhar Mirajkar Vs. State of Maharashtra (AIR 1967 SC 1) has held that no writ of certiorari can be issued against judgment or order of a court. That decision was followed by the Division Bench of this court in Union of India Vs. Vijaya Mohini Mills (1992(1) KLT 404). The decisions of the Supreme Court in Md. Shafi Vs. Addl. D & S.J., Allahabad (AIR 1977 SC 836), State of M.P. Vs. babu Lal (AIR 1977 SC 1718) and Harbans Lal Vs. Jagmohan Saran (1985(4) SCC 333) were distinguished since in those decisions no reference was made to the decision of the Constitution Bench in Naresh Shridhar Mirajkar Vs. State of Maharashtra (supra). Referring to the decision of the Constitution bench the Supreme W.P.C.No.16209 of 2010 : 3 : Court in Surya Dev Rai Vs. Ram Chander Rai and Ors (2003 (6) SCC 675) has held that under what all circumstances the High Court could interfere under Articles 226 and 227 of the Constitution. It is held that neither of the provisions is available when an alternative efficacious remedy by way of appeal or revision is available to the person aggrieved and that power under Articles 226 and 227 of the Constitution as the case may be is to be used sparingly, ie where judicial conscience of the High Court dictates it. Here even if it is assumed that what the learned counsel submitted is right and there are irregularities which would effect sustainability of Ext.P1, judgment it is not as if petitioners are left with no other efficacious remedy. An appeal is provided from the judgment under challenge and the decree that followed to the first appellate court even on the finding of fact. Petitioner can urge all his contentions in such appeal. As such, there is no reason why this court should interfere under Articles 226 and 227 of the Constitution. Hence, without prejudice to the right of petitioner to urge all their contentions in the appeal that may be preferred against Ext.P1, judgment and the decree this writ petition is dismissed. (THOMAS P JOSEPH, JUDGE) Sbna/-