IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 10TH JUNE 2011 / 20TH JYAISHTA 1933 OP(C).No. 1607 of 2011(O) ------------------------- AGAINST THE ORDER IN IA.686/2011 IN AS.18/2011 of SUB COURT, PAYYANNUR OS.432/2008 of MUNSIFF COURT, THALIPARAMBA .................... PETITIONER: -------------------- MARIPURATH JOSE, S/O. KURUVILA, AGED 61 YEARS, AGRICULTURIST, MANAKADAVU P.O., KAYALAPARA, NEW NADUVILAMSOM, NADUVIL DESOM, THALIPARAMBA TALUK, KANNUR DISTRICT. BY ADV. SRI.U.BALAGANGADHARAN SRI.G.GIREESH RESPONDENT(S): --------------- MARIPURATH MATHEW, S/O.KURUVILA AGED 55 YEARS, AGRICULTURIST, MANAKADAVU P.O., KAYALAPARA, NEW NADUVILAMSOM, NADUVIL DESOM, THALIPARAMBA TALUK, KANNUR DISTRICT-670 141. ADV. SRI.C.K.PRASAD THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 10/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C).No. 1607 of 2011(O) PETITIONER'S EXTS: EXT.P1:- COPY OF ADVOCATE COMMISSION REPORT IN OS NO.432/08 WITH SKETCH EXT.P2:- COPY OF JUDGMENT IN OS 432/08 EXT.P3:- COPY OF I.A.686/11 IN AS 18/11 EXT.P4:- COPY OF I.A.NO.687/11 IN A.S. 18/11 RESPONDENT'S EXTS: NIL /TRUE COPY/ P.A.TO JUDGE K.T.SANKARAN, J. ------------------------------ O.P(C)No.1607 OF 2011 ------------------------------ Dated this the 10th day of June, 2011 JUDGMENT The petitioner filed O.S.No.432 of 2008 on the file of the Court of the Munsiff of Taliparamba against the respondent for permanent prohibitory injunction. The trial court dismissed the suit. The petitioner filed A.S.No.18 of 2011 on the file of the Sub Court, Payyannur challenging the judgment and decree of the trial court. There was a delay of 32 days in filing the appeal and I.A.686 of 2011 was filed by the petitioner to condone the delay. It is stated that the petitioner filed I.A.No.687 of 2011 before the Appellate Court for an order of status quo in respect of the immovable property. It is stated that I.A.No.686 of 2011 is posted to 22.6.2011. O.P(C)No.1607 OF 2011 2 2. The Original Petition is filed under Article 227 of the Constitution of India for the following reliefs: “1. Issue directions to maintain status quo as on today till I.A.686/11 and I.A.687/11 in AS 18/11 are heard and disposed of by the Sub Court, Payyannur in the interest of justice. 2. Issue direction to the Sub Court, Payyannur to take up I.A.686/11 and 687/11 pending before it on the date of re-opening and pass appropriate order in accordance with law. 3. Issue such other appropriate, order or direction which this Hon'ble Court may deem fit in the circumstances of the case.” 3. The petitioner stated in the Original Petition that he was constrained to approach the High Court as the defendant was taking advantage of the vacation to block the 'B' schedule road. 4. The learned counsel appearing for the respondent submitted that the Original Petition was filed without any bonafides and it was filed only to make an attempt to get an interim order causing much prejudice to the respondent. He O.P(C)No.1607 OF 2011 3 also submitted that the respondent has not received notice in A.S.No.18 of 2011. 5. The reliefs prayed for by the petitioner cannot be granted. Since there is a delay in filing the appeal, the Appellate Court has to first consider whether the delay is to be condoned. The respondent has not appeared in the appeal and the Appellate Court had no occasion to consider the application on the merits. At this juncture, the petitioner is not justified in rushing to the High Court with an Original Petition under Article 227 of the Constitution of India. 6. The learned counsel for the petitioner submitted that in the facts and circumstances of the case, there may be a direction to the Lower Appellate Court to consider I.A.No.686 of 2011 expeditiously. For the reasons stated above, the Original Petition is dismissed. However, the Sub Court, Payyannur shall O.P(C)No.1607 OF 2011 4 expedite the hearing of I.A.No.686 of 2011 in A.S.No.18 of 2011(application for condonation of delay in filing the appeal) after notice is served on the respondent. K.T.SANKARAN, JUDGE. cms