IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 5968 of 2010(O)
1. SEVN STAR INFORMATION TECHNOLOGY P.LTD.,
... Petitioner
Vs
1. KOYA, AGED 54, S/O.YUSUF,
... Respondent
For Petitioner :SRI.SANTHOSH MATHEW
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :17/05/2010
O R D E R
THOMAS P. JOSEPH, J.
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W.P.(C) No.5968 of 2010
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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
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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
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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