W.P.C.No.12443 of 2010 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 14TH JUNE 2010 / 24TH JYAISTHA 1932 WP(C).No. 12443 of 2010(O) -------------------------- AS.421/2009 of II ADDL. DISTRICT COURT, PALAKKAD OS.25/2008 of MUNSIFF COURT, ALATHUR .................... PETITIONER: --------------- M.D.ANIL KUMAR, BUSINESS, AGED 47 YEARS, S/O.MAMPULLY DAMODARAN, R/AT 'NISAGANDHI', 15/89/4, HARITHA NAGAR, 2ND STREET, PUZHAKKAL DESOM, POONKUNNAM VILLAGE, THRISSUR TALUK. BY ADV. SRI.JOHN JOSEPH(ROY) RESPONDENT: --------------- RADHAKRISHNAN, AGED 27 YEARS, S/O.POOVATHINGAL KAMALAKSHI, POOTHANGAL VEEDU, POOSARI MEDU, TENKURISSI VILLAGE, ALATHUR TALUK. ADV. SRI.SAJAN VARGHEESE K. FOR R SRI.LIJU. M.P FOR R THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.C.No.12443 of 2010 APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1 : JUDGMENT DTD.29-09-2009 OF MUNSIFF COURT, ALATHUR IN O.S.No.25 OF 2008 EXHIBIT P2 : DECREE OF the SUIT EXHIBIT P3 : OPERATIVE PORTION OF the ORDER IN I.A.158/2010 IN A.S.No.421 OF 2009 DTD.26-03-2010 OF THE 2nd ADDL. DISTRICT JUDGE, PALAKKAD RESPONDENT'S EXHIBITS: NIL True Copy P.A to Judge THOMAS P JOSEPH, J. ---------------------------------------- W.P.C.No.12443 of 2010 --------------------------------------- Dated this 14th day of June, 2010 JUDGMENT Revision petitioner is the plaintiff in O.S.No.25 of 2008 of the court of learned Munsiff, Alathur. That is a suit for prohibitory injunction to restrain respondent from trespassing into the suit property and committing waste therein. The suit was decreed in favour of petitioner. Respondent/defendant No.5 challenged that judgment and decree before learned Additional District Judge in A.S.No.421 of 2009 and during pendancy of that appeal, apprehending that petitioner is about to put up a transformer in the disputed property he filed I.A.No.358 of 2010 for an order of temporary injunction to restrain petitioner from putting up a transformer. Though that application was opposed by petitioner, learned Additional District Judge-II, Palakkad vide Ext.P3, order dated 26-03-2010 restrained petitioner from putting up transformer in the suit property or putting up any construction until disposal of the appeal. That order is under challenge in this petition preferred under Article 227 of the Constitution. Learned counsel for petitioner has contended that petitioner is the owner of property as found by the trial court and that there was no occasion or necessity W.P.C.No.12443 of 2010 : 2 : for learned Additional District Judge to restrain petitioner from putting up transformer or other structure in the suit property. According to the learned counsel petitioner wanted to put up a plastic industry in the suit property for which installation of a transformer is essential. Learned counsel for respondent/defendant No.5 has raised preliminary objection as to the maintainability of the petition when statutory remedy of appeal is available to the petitioner. According to the learned counsel in view of section 104(2) and 106 of the Code of Civil Procedure (for short, “the Code”) proper remedy of petitioner is to challenge Ext.P3, order as provided under Order 43 Rule 1 of the Code. 2. Respondent filed I.A.No.358 of 2010 on which the impugned order is passed invoking Order 39 Rule 1 and 2 of the Code. This court in Vincent Vs. Aisumma (1988(1) KLT 420) has held that defendant also can move an application for injunction against plaintiff under Order 39 Rule 1, if circumstances warranted that. That was a case where against the order of injunction passed at the instance of defendant, plaintiff preferred a revision in this court. A preliminary objection was raised as to maintainability of revision since the order under challenge was appealable under Order 43 Rule 1 of the Code. That objection was upheld and the civil revision petition was found not maintainable. True, that W.P.C.No.12443 of 2010 : 3 : decision was rendered regarding maintainability of revision against an order of injunction passed under Order 39 Rule 1 and 2 of the Code. It is not disputed that the impugned order was passed under Order 39 Rule 1 of the Code in a regular appeal pending before learned Additional District Judge under Section 96 of the Code. An appeal is a continuation of the suit and hence it is well within the power of appellate court to pass such orders as the trial court could pass. Section 104(1(i)) of the Code permits an appeal from “any order made under rules from which an appeal is expressly allowed by rules”. An order of injunction passed under Order 39 Rule 1 of the Code is appealable under Order 43 Rule 1(r) of the Code. Subsection 2 of 104 states that “no appeal shall lie from any order passed in appeal under this section”. The bar of appeal under the said provision applies only to cases where the order has been passed in an appeal preferred under Section 104(1) of the Code. In the present case the impugned order was passed not in an appeal arising under Section 104(1) or Order 43 Rule 1 of the Code but in a regular appeal preferred under Section 96 of the Code. Section 106 of the Code states , “where an appeal from any order is allowed, it shall lie to the court to which an appeal would lie from the decree in the suit in which such order was made, or where such order is made by a court (not W.P.C.No.12443 of 2010 : 4 : being a High Court) in the exercise of appellate jurisdiction, then to the High Court.” When an appealable order is passed by the appellate court in an appeal preferred under Section 96 of the Code such appeal has to be preferred to the High Court as per Section 106 of the Code. This view gets support from a decision of the Allahabad High Court in Mohd. Tahir Khan Vs. Mohd. Yunif Khan (2006(5) All. Law Journal 393). There, distinction between an appeal from an order passed under Section 104 r/w Order 43 Rule 1 of the Code and an order passed in a regular appeal preferred under Section 96 of the Code was considered. It was held that order which are otherwise appealable under Order 43 of the Code passed in regular appeals filed under Section 96 of the Code are appealable under Order 43 Rule 1 of the Code. In the present case, order on I.A.No.358 of 2010 is passed under Order 39 Rule 1 and 2 of the Code in an appeal preferred under Section 96 of the Code and hence by virtue of Section 106 of the Code remedy of the aggrieved party is to challenge the said order in appeal. 3. Learned counsel for petitioner when faced with the above situation contended that even when an appeal is provided, this court is entitled to interfere invoking its supervisory jurisdiction under Article 227 of the Constitution. There can be no W.P.C.No.12443 of 2010 : 5 : doubt as to the supervisory jurisdiction of this court under Article 227 of the Constitution but, when statutory remedy is provided proper course is to approach the appropriate forum by way of appeal. Interference by this court under Article 227 of the Constitution is warranted only when the order is patently illegal and it shocked consequence of the court. It is not as if learned Additional District Judge lacked jurisdiction to pass the impugned order. The question whether circumstances warranted such an order is not a matter which this court is required to consider under Article 227 of the Constitution. Having regard to the facts and circumstances of the case I am inclined to think that this is not a fit case for interference under Article 227 of the Constitution when petitioner has a statutory remedy by way of appeal under Order 43 Rule 1(r) of the Code. 4. Reconciling to the above position learned counsel for petitioner requested that learned Additional District Judge may be directed to dispose of the appeal at the earliest. Learned counsel has highlighted the difficulties being experienced by petitioner on account of order of temporary injunction. According to the learned counsel the appeal itself is ripe for consideration. Having regard to the difficulties expressed by learned counsel, I direct learned Additional District Judge-II, Palakkad to dispose of A.S.No.421 of W.P.C.No.12443 of 2010 : 6 : 2009 if preliminary steps are over as expeditiously as possible giving top priority to it. With the above direction the writ petition is dismissed. (THOMAS P JOSEPH, JUDGE) Sbna/-