IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 11TH AUGUST 2009 / 20TH SRAVANA 1931 CRP.No. 286 of 2008() ------------------------------ AGAINST THE ORDER DATED 02/02/2008 IN IA 1073/2007. IN OS.301/2004 of MUNSIFF COURT,MUVATTUPUZHA .................... REVN. PETITIONER/(PLAINTIFF): ----------------------------------------------- RANJITH V.NATH, S/O.A.N.VISWANATHAN NAIR THELAKATTU NISHA SADAN, KUROOR KARA,KOTHAMANGALAM VILLAGE, KOTHAMANGALAM P.O., PIN-686 691. BY MR.CHACKO GEORGE, SENIOR ADVOCATE ADV. MR.H.RAMANAN MR.ALEX N.MATHEW (KOLLAM) MR.JAMES JOSE RESPONDENTS/ (DEFENDANTS): ------------------------------------------------ 1. DR. POULOSE ABRAHAM, S/O. ABRAHAM, PALLIMALIL HOUSE,KUROOR KARA,KOTHAMANGALAM VILLAGE KOTHAMANGALAM P.O., PIN-686 691. 2. SHIBU GEORGE, S/O. GEORGE, NADUKUDIYIL HOUSE,KUROOR KARA, KOTHAMANGALAM VILLAGE, KOTHAMANGALAM P.O., PIN-686 691. R2 BY ADV. DR.GEORGE ABRAHAM . THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 11/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. S.S.SATHEESACHANDRAN, J. ----------------------------- C.R.P.No.286 OF 2008 -------------------------- Dated this the 11th day of August 2009 ------------------------------------- O R D E R Revision is filed by the plaintiff in O.S No. 301 of 2004 on the file of the Munsiff Court, Moovattupuzha. Suit was one for decree of mandatory injunction. Initially there was one defendant in the suit, the present first respondent. Parties in the suit reached an out of court settlement and the petitioner / plaintiff moved an application before the court below stating that he is not pressing the suit. Meanwhile second respondent in the revision got impleaded in the suit contending that without making him a party in the suit the plaintiff and defendant in the party array are colluding together to deprive him of his valuable property. Court below allowed his C.R.P.No.286 OF 2008 2 impleadment as the second defendant. On such impleadment he filed written statement raising a counter claim, for a decree of prohibitory injunction against the plaintiff. Later the second defendant moved an application stating that he is not pressing the counter claim seeking liberty to file a fresh suit on the same cause of action. The trial court dismissed the suit but allowed the petition of the second respondent permitting him to withdraw the counter claim with liberty to file a fresh suit. Revision is directed against the order passed by the court below granting permission to the second respondent as indicated above. As against the dismissal of the suit, plaintiff has preferred an appeal and it is pending before the Sub Court, Moovattupuzha. 2. Notice being given, second respondent has entered appearance. I heard the counsel on C.R.P.No.286 OF 2008 3 both sides. The learned counsel for the revision petitioner canvassed for calling the appeal preferred by him against the dismissal of his suit to this court for hearing and disposal with the revision petition. It is submitted that he has filed an interlocutory application before this court for the above purpose. On hearing the counsel at length, I find the application moved is not entertainable. This court in the revision is exercising its supervisory jurisdiction and that jurisdiction is limited only with respect to the questions permitted under Section 115 of the Code of Civil Procedure. An appeal preferred by the plaintiff against the dismissal of the suit cannot be called for, heard and disposed along with the revision . Whatever be the decision in that appeal, the parties will have an opportunity to prefer a second appeal as provided by the Code of Civil Procedure. At the instance of one party, if C.R.P.No.286 OF 2008 4 the first appeal is called for and disposed by this court, the opposite party will be precluded from exercising his right of second appeal. Further more in exercise of revisional jurisdiction under Section 115 of the Code of Civil Procedure it is not permissible for the court to call for, hear and dispose an appeal on its merits. So much so, request made by the learned counsel for the revision petitioner to call for the appeal from the lower appellate court is not entertainable. Then on the merits of the revision, the learned counsel for the second respondent submitted that though permission had been granted by the court to file a fresh suit on the cause of action raised in the counter claim the respondent has not filed any suit so far. The relief claimed by the second respondent for a decree for perpetual prohibitory injunction was a cause of action based on the apprehension entertained. So much so, it is open C.R.P.No.286 OF 2008 5 to him, in the event of apprehension as to threat of any further injury, to file a fresh suit on a subsequent cause of action. So permission granted by the court in the present case after withdrawal of the counter claim as sought for by him has no significance at all. Revision lacks merits, and it is dismissed. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A TO JUDGE vdv