High Court Kerala High Court

Sevn Star Information Technology … vs Koya on 17 May, 2010

Kerala High Court
Sevn Star Information Technology … vs Koya on 17 May, 2010
       

  

  

 
 
  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.
                          --------------------------------------
                           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

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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