IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 17TH MAY 2010 / 27TH VAISAKHA 1932 WP(C).No. 5968 of 2010(O) ------------------------- CMA.13/2009 of DISTRICT COURT, ALAPPUZHA OS.345/2009 of PRINCIPAL MUNSIFF,ALAPPUZHA .................... PETITIONER(S): --------------- SEVEN STAR INFORMATION TECHNOLOGY P.LTD., REHNA BUILDINGS, SOUTH OF COLLECTORATE JUNCTION, ALAPPUZHA REPRESENTED BY ITS AUTHORISED SIGNATORY, SANJEEV AHUJA. BY ADV. SRI.SANTHOSH MATHEW SRI.SATHISH NINAN SRI.ARUN THOMAS SRI.JENNIS STEPHEN RESPONDENT(S): --------------- KOYA, AGED 54, S/O.YUSUF, RESIDING AT V.I.P.COMPOUND, VALIYAKULAM WARD, ALAPPUZHA. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.5968 of 2010 -------------------------------------- Dated this the 17th day of May, 2010. JUDGMENT Defendant No.2 in O.S.No.345 of 2009 of the court of learned Munsiff, Alappuzha has preferred this Writ Petition requesting to set aside Ext.P12, order dated 18.01.2010 on I.A.No.8 of 2010 in C.M.A.No.13 of 2009 of the District Court, Alappuzha filed by the respondent/plaintiff, and for other appropriate reliefs. Respondent/plaintiff filed the suit seeking a decree for prohibitory injunction against petitioner collecting subscription from cable T.V. subscribers coming within the area referred to in the plaint schedule. He also moved an application for temporary injunction in that line. Learned Munsiff after considering the objections raised by the petitioner dismissed the application against which respondent preferred C.M.A.No.13 of 2009 before the District Court, Alappuzha. When that Civil Miscellaneous Appeal was pending, respondent produced Ext.P10, certificate to support his contention that he has got licence for running cable T.V. business in the plaint schedule area. In response, petitioner filed I.A.No.8 of 2010 (ie. Ext.P11) to dismiss the Civil Miscellaneous Appeal as not maintainable in view of Section 15 of the Telecom Regulatory Authority of India Act (for short, “the Act”). Learned District Judge dismissed I.A.No.8 of 2010 vide Ext.P12, order which is challenged in this proceeding. Learned counsel for petitioner submits that in view of Section 15 of the Act referred to above, no civil court could grant injunction with respect to WP(C) No.5968/2010 2 matters required to be decided by the appellate authority referred to therein and hence, the Civil Miscellaneous Appeal itself is not maintainable since in the Civil Miscellaneous Appeal, respondent is seeking an order of temporary injunction. According to the learned counsel, Section 15 of the Act barred the civil court from entertaining the suit in which case, learned Munsiff could not have granted an interim order of injunction and that being the position of law, the District Court also could not grant any injunction as prayed for in the Civil Miscellaneous Appeal. Learned counsel has placed reliance on the decision in Vengode Muslim Jama-ath and another v. Shajahan and another (2009 (3) KHC 647) to contend that to raise the question of jurisdiction on a question of law, it is not necessary that the petitioner ought to have filed written statement and an issue regarding that framed as required under Order 14 Rule 1 of the Code of Civil Procedure (for short, “the Code”). 2. Order under challenge before the learned District Judge is one refusing to grant injunction as prayed for by the respondent though as conceded by the learned counsel for petitioner the refusal was not in view of Section 15 of the Act obviously for the reason that no such question was raised before the learned Munsiff either in the objection filed to the application for interim injunction or at the time of hearing. Learned District Judge has observed that the Civil Miscellaneous Appeal is 'maintainable' for the reason that the appeal is preferred against an order refusing to grant temporary injunction under Order 39 Rule 1 of the Code. Observation made by learned District Judge as to the WP(C) No.5968/2010 3 maintainability of Civil Miscellaneous Appeal could only be understood in the light of the observation that the Civil Miscellaneous Appeal is maintainable under Order 43 Rule 1 of the Code. Learned District Judge has made it clear that lack of jurisdiction of the trial court in deciding any dispute regarding matters specified in the Act could be raised by the petitioner in the Civil Miscellaneous Appeal. In otherwords that observation of the learned District Judge makes it clear that the question whether in the Civil Miscellaneous Appeal preferred by the respondent he is entitled to get an order of injunction in the light of the contention petitioner now advanced is something which the petitioner can urge in the Civil Miscellaneous Appeal. It is on that premise that I.A.No.8 of 2010 was dismissed by the learned District Judge. I do not find reason to interfere with that order since the learned District Judge has reserved right of petitioner to urge his contentions while hearing Civil Miscellaneous Appeal itself. In the circumstances this Writ Petition does not require admission and it is accordingly dismissed in limine. THOMAS P.JOSEPH, Judge. cks