IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 10TH FEBRUARY 2009 / 21ST MAGHA 1930 WP(C).No. 3559 of 2009(W) OS.NO.196/2008 OF MUNSIFF'S COURT, KANJIRAPPALLY PETITIONER: JOHN J.ILLICKAN S/O.LATE JACOB J.ILLICKAN, ILLICKAL HOUSE, S.A.ROAD, KOCHI-16. FROM GRACY BUNGLOW, PARATHODE, KANJIRAPALLY. BY ADV. SRI.V.BHASKARAN PILLAI SRI.M.K.SHASHI KUMAR SRI.B.VINOD RESPONDENT: SHEELA PHILIP, THAZHAKKATTU HOUSE, EDAPPALLY P.O., THRIKKAKKARA NORTH VILLAGE, KANAYANNOOR TALUK. FROM GRACY BUNGALOW, PALAPPARA KARA, EDAKKUNNAM VILLAGE, KANJIRAPPALLY TALUK. ADV. SRI.A.ANTONY SMT.LEELAMMA ANTONY THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE WILL DATED 14/6/1988 EXECUTED BY THE PETITIONER'S FATHER AND MOTHER. EXT.P2 TRUE COPY OF THE WILL EXECUTED BY THE PETITIONER'S MOTHER ON 8.8.2002. EXT.P3 TRUE COPY OF THE WILL DATED 22.2.2008 EXECUTED BY THE PETITIONER'S MOTHER. EXT.P4 TRUE COPY OF THE CERTIFICATE DATED 20.4.2008 ISSUED FROM THE MAR AUGUSTINE JUBILEE HOSPITAL. EXT.P5 TRUE COPY OF THE PLAINT DATED 4.7.2008 FILED BEFORE THE MUNSIFF'S COURT, KANJIRAPALLY. EXT.P6 TRUE COPY OF THE INTERIM APPLICATION NI,1024/2008 AND AFFIDAVIT DATED 4.7.2008. EXT.P7 TRUE COPY OF THE I.A.NO.1488/2008 DATED 26.9.2008. EXT.P8 TRUE COPY OF THE I.A.NO.1181 OF 2008 DATED 30.7.2008. EXT.P9 TRUE COPY OF I.A.NO.1214/2008 DATED 4.8.2008. EXT.P10 TRUE COPY OF THE COMMON ORDER DATED 17.10.2008 PASSED BY THE MUNSIFF'S COURT, KANJIRAPALLY. EXT.P11 TRUE COPY OF THE ORDER PASSED BY THE ADDITIONAL THAHZILDAR, KANJIRAPALLY DATED 6.10.2008. EXT.P12 TRUE COPY OF THE JUDGMENT IN W.P.(C) NO.30130 OF 2008 DATED 14.10.2008. RESPONDENT'S EXHIBITS: EXT.R1(a) TRUE COPY OF PETITION DATED 2.11.2000 IN O.P(DIVORCE) NO. 771 OF 2000 FILED BY THE PETITIONER BEFORE FAMILY COURT, ERNAKULAM. EXT.R1(b) TRUE COPY OF JUDGMENT DATED 16.10.2004 IN O.S.NO.3 OF 2002 OF MUNSIFF'S COURT, ERNAKULAM. //TRUE COPY// AHZ/ K.T.SANKARAN, J. ------------------------------------------------------ W.P.(C) NO. 3559 OF 2009 W ------------------------------------------------------ Dated this the 10th February, 2009 JUDGMENT The petitioner challenges Ext.P10 order dated 17.10.2008 in four Interlocutory Applications in O.S.No.196 of 2008, on the file of the Court of the Munsiff of Kanjirappally. The suit was filed by the respondent for injunction. The property involved is having an extent of more than 28 acres. The plaintiff is the sister of the defendant. 2. I.A.No.1024 of 2008 was filed by the plaintiff for a temporary injunction, while I.A.No.1181 of 2008 was filed by the defendant for temporary injunction against the plaintiff. I.A.No.1214 of 2008 was filed by the defendant for a mandatory injunction directing removal of locks placed on the gates. I.A.No.1488 of 2008 was filed by the defendant for appointing him as the Receiver. The court below considered all these applications and by a common order, allowed the application for injunction filed by the plaintiff and dismissed all the applications filed by the defendant. The order in all these applications are appealable under Order XLIII Rule 1 of the Code of Civil Procedure. Instead of filing appeals, the petitioner has filed this Writ Petition under Article 227 of the Constitution of India. W.P.(C) NO.3559 OF 2009 W :: 2 :: 3. It is submitted by the learned counsel for the respondent that the petitioner did not file appeals deliberately, since the respondent had filed caveat before the lower appellate court. Learned counsel appearing for the petitioner submitted that in spite of the availability of a right of appeal to the petitioner, this Court exercising jurisdiction under Article 227 of the Constitution would be entitled to grant reliefs if it is shown that there is manifest injustice. Learned counsel for the petitioner submitted that the court below has taken into account a document produced by the plaintiff after the closure of the arguments and such a course was adopted without giving an opportunity to the petitioner to advance his arguments on the basis of that document. Therefore, the petitioner contends that a manifest injustice was done which requires to be corrected by entertaining the Writ Petition under Article 227 of the Constitution of India. Learned counsel for the respondent pointed out that it is not based on that document alone that the court below has arrived at the conclusion in favour of the plaintiff. He pointed out that the petitioner relied on a change of mutation made after the issue of notice by the plaintiff and the document which was produced by the plaintiff after the closure of the evidence was a document cancelling that mutation. He also pointed out that the court below considered the entire documentary evidence in the case and came to the conclusion that the plaintiff is entitled to the relief and that the defendant is not entitled to the reliefs in the applications filed by him. W.P.(C) NO.3559 OF 2009 W :: 3 :: 4. Since the orders in the applications filed by the plaintiff as well as the defendant are appealable under Order XLIII Rule 1 of the Code of Civil Procedure, I do not think that this is a fit case where jurisdiction under Article 227 of the Constitution of India can be invoked. Therefore, I am not inclined to admit the Writ Petition. Dismissal of this Writ Petition would not stand in the way of the petitioner resorting to the legal remedies available to him. Learned counsel for the petitioner submitted that the petitioner would file appeals, but by now, the time for filing the appeal is over. The Writ petition was filed only on 2.2.2009 challenging the order dated 17.10.2008. The only observation I can make is that the period from the date of filing of the Writ Petition to the date of dismissal of the same shall be taken into account as a period during which the petitioner was prosecuting this Writ Petition, while considering the question of condonation of delay by the court below, in the appeals to be filed by the petitioner. With these observations, the Writ Petition is dismissed. (K.T.SANKARAN) Judge ahz/