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High CourtsSingle Bench(2013) 01 KL CK 0089

Hussain and Muhammadali vs Nazeer J.L., Haji M. Nazeer and Pathanapuram Grama Panchayath

High Court Of Kerala · Decided on 2 January 2013

HON’BLE JUDGES
Thomas P. Joseph, J
CASE NUMBER
O.P. (C) No. 8 of 2013 (O)
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Judgment

4 paragraphs · 346 words

Thomas P. Joseph, J.—This Original Petition is at the instance of additional defendants 3 and 7, impleaded in O.S. No. 147 of 2011 of the Munsiff''s Court, Punalur pursuant to a publication under Order I, Rule 8 of the CPC (for short, "the Code"). Respondents 1 and 2 filed the suit for a decree for prohibitory injunction to restrain the 3rd respondent from operating the slaughter house in the suit property. Since numerous persons were interested in the suit, a publication was made under Order I, Rule 8 of the Code. Pursuant to that publication the petitioners got impleaded as aforesaid. In the meantime the learned Munsiff passed Ext. P4, order of injunction on I.A. No. 788 of 2012 filed by respondents 1 and 2 restraining operation of the slaughter house. Grievance of the petitioners is that I.A. No. 788 of 2012 was filed on 13.03.2012 and disposed of by Ext. P4, order on 07.04.2012 but they were impleaded as additional defendants 3 and 7 only by Ext. P3, order dated 01.06.2012. They did not have the opportunity to oppose I.A. No. 788 of 2012. Hence the petitioners challenge Ext. P4, order of injunction in the Original Petition.

2.

Learned counsel submitted that since petitioners were impleaded only subsequent to Ext. P4, order dated 07.04.2012 they did not have the occasion to resist I.A. No. 788 of 2012 on which Ext. P4, order was passed.

3.

Assuming so, remedy of the petitioners is not to approach this Court under Article 227 of the Constitution but under Order XXXIX, Rule 4 of the Code. In K.M. Babu Vs. Election Commission of India and Another, this Court has pointed out that the expression "any party" occurring in Rule 4 of Order XXXIX of the Code include any party who had subsequently come on record as a party. Since petitioners have a statutory remedy as aforesaid, exercise of power under Article 227 of the Constitution is not warranted.

Resultantly, the Original Petition is disposed of without prejudice to other remedies as are available to the petitioners under the law.