Fathery Antony Jino George … vs M/S. Malabar Ayurvedics on 5 June, 2009

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

FAO.No. 101 of 2009()


1. FATHERY ANTONY JINO GEORGE CHAKKALAKKAL,
                      ...  Petitioner
2. KUTTOOR ST. JOHNS CHURCH, KUTTOM AMSOM

                        Vs



1. M/S. MALABAR AYURVEDICS,A REG.
                       ...       Respondent

                For Petitioner  :SRI.V.C.JAMES

                For Respondent  : No Appearance

The Hon'ble MR. Justice V.RAMKUMAR

 Dated :05/06/2009

 O R D E R
                                                           "CR"
                        V. RAMKUMAR, J.
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                     F.A.O.No.101 of 2009
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              Dated this the 5th day of June, 2009

                            JUDGMENT

Eventhough this Court admitted this appeal and had issued

notice to the respondent, so far service of notice to the

respondent is not complete. Having regard to the facts and

circumstances of the case, I do not think that this appeal which

is not maintainable should any more be kept pending before this

Court. Hence the order issuing notice to the respondent is

recalled.

2. The respondent herein instituted a suit before the

Vacation Judge (District Judge), Thalassery during the mid

summer holidays. That suit was to be instituted before the

Munsiff’s Court, Payyannur which at the relevant time was on

vacation. As per the impugned order dated 28.4.2009 in

I.A.No.498 of 2009, the learned Vacation Judge passed an order

of ad-interim injunction restraining the appellants herein from

trespassing into the plaint schedule property and committing any

act of waste therein. The plaint schedule property is having an

F.A.O.No.101 of 2009
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extent of 6 acres. It is the said order which is assailed by the

defendants/appellants in this appeal filed under Order XLIII Rule

1(r) C.P.C. Eventhough by virtue of Section 19 of the Kerala

Civil Courts Act, 1957, the Vacation Judge cannot pass any final

order in a case of this nature and his order can only be a

provisional order, his order must notionally be considered as an

order passed by the Munsiff and such order is appealable. But,

by virtue of Section 13 of the Kerala Civil Courts Act, 1957 such

appeals are to be filed not before the High Court, but before the

District Court or before the Sub court (where the Sub Court

concerned is not located in a District Centre and has filing

powers) See Viswanbharan v. Damodaran Nair (1988(1) KLT

32).

3. Accordingly, this appeal is held to be not maintainable.

The Registry shall return the memorandum of appeal to the

appellants for presentation before the proper court.

4. Another alternative available to the appellants is to get

the appeal withdrawn with liberty to prosecute the matter

before the trial court. Thereafter, he can file a counter to the

application for interim injunction, now pending before the

F.A.O.No.101 of 2009
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Munsiff’s Court, Payyannur and seek an early hearing of the

matter. It is the case of the appellants that the

respondent/plaintiff has been guilty of suppression of facts while

securing the order of ad interim injunction. In case the Munsiff’s

Court, Payyannur is moved by the appellants, that court shall

take into account the proviso to Order XXXIX Rule 4 C.P.C and

also the time limit fixed under Rule 3A of Order XXXIX C.P.C and

pass final orders on the petition for interim injunction after

giving both sides an opportunity of being heard.

Dated this the 5th day of June, 2009.

V. RAMKUMAR, JUDGE

sj