St.John''s Jacobite Syrian Church and Others vs Fr.John Moolamattom

Balasubramanyan, J.—This is a petition for condoning the delay of 7 days in filing the appeal under Sec. 5(ii) of the Kerala High Court Act (for short ''the Act''). When this petition came up for orders we expressed a doubt whether the appeal under Sec. 5(ii) of the Act was maintainable against the decision of the single Judge in a civil miscellaneous appeal filed in terms of Sec. 104 read with Order 43 of the Civil Procedure Code. Counsel for the appellants took time. Today, when the matter came up for further arguments, counsel who was appearing for the respondents before the learned single Judge also appeared to assist the court regarding this question. Hence both sides were heard. The appeal is filed under Sec. 5(ii) of the Kerala High Court Act. Section 5(ii) reads thus:

Appeal from judgment or order of single Judge:- An appeal shall lie to a Bench of two Judges from-

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(ii) a judgment of a single Judge in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of original jurisdiction by a subordinate court.

It is contended by learned counsel for the appellants that on a reading of Sec.5(ii) of the Act, it is clear that the order in an appeal disposed of by a single Judge was also appealable under Sec.5(ii) of the Act. Counsel submitted that the restriction placed by Sec. 104 CPC is not applicable in the case of an appeal governed by Sec.5(ii) of the Kerala High Court Act especially in the light of the decision of a Full Bench in K.Venugopalan v. Malappuram District Co-operative Milk Supply Union (1995 (2) KLJ 170). Counsel also referred to the decision in Sharmila v. Subhadra (2001 (1) KLT 502) wherein the Division Bench of which one of us (Balasubramanyan, J.) was a party has taken the view that the restrictions imposed by the CPC are not applicable to appeals under Sec. 5(ii) of the Act. It is, therefore, clear that by relying on Sec. 104 of the Code of Civil Procedure, an appeal under Sec. 5(ii) of the Act against an order in an appeal filed under Sec. 104 read with order XLIII of the Code cannot be kept out.

In the case on hand, an application for injunction was filed before the District Court, Ernakulam, in a suit filed in that court. The injunction prayed for was not fully granted. The court partly allowed the application for injunction. Against the refusal of relief in part, a civil miscellaneous appeal was filed before this Court under Sec. 104 read with Order XLIII Rule 1(r) of the Code of Civil Procedure. The learned single Judge who was entitled to hear the appeal in terms of Sec. 3 of the Act, modified the order passes by the District Court. It is feeling aggrieved by that modification, that the defendants in the suit, the respondents in the application for injunction before the District Court, have filed this appeal under Sec. 5(ii) of the Act. Going by the language of See. 5(ii) of the Act, it may be possible to say that the appeal would be maintainable.

But a Full Bench of this court in Fr.Abraham Mathews v. Ittan Pillai (1981 KLT 260) considered the identical question. The Full Bench was inclined to think that on the language of Sec. 5(ii) of the Act it may be possible to say that an appeal would lie before the Division Bench. But their Lordships held that the expression "from an appellate decree or order" has to be read down so as not to cover orders passed by the single Judge in civil miscellaneous appeals arising from challenges to orders made by the trial court on interlocutory applications. Their Lordships decided to read down the scope of Sec. 5(ii) of the Act in view of the practical considerations referred to by them in paragraph 7 of that judgment. In fact, their Lordships also suggested in para.9 of that judgment that it would be appropriate to consider an amendment of Sec. 5(ii) of the Act so as to give effect to the views expressed by their Lordships in the Full Bench decision. Of course, as emphasised by learned senior counsel for the appellants, there has been no amendment of Sec. 5(ii) of the Act as suggested by the Full Bench in Fr.Abraham Mathews'' case.

The question is whether we should not follow the ratio of the decision in Fr.Abraham Mathews'' case or whether there is any justification in trying to revive a controversy set at rest by that Full Bench. As we have noticed, a literal reading of Sec.5(ii) of the Act in the light of the decision of the Full Bench in K.Venugopalan v. Malappuram District Co-operative Milk Supply Union (1995 (2) KLJ 170) may induce the court to reconsider the correctness of the decision in Fr.Abraham Mathews'' case (1981 KLT 260). But in the light of the practical considerations referred to in that decision and in view of the further fact that the said decision has been followed by this court for the last 20 years, we are not satisfied that a reconsideration of that decision is called for at this stage. Therefore, we decline the prayer of senior counsel for the appellants to have a reconsideration of the correctness of the decision in Fr.Abraham Mathews'' case (1981 KLT 260). Thus, we hold that the appeal sought to be filed by the appellants under Sec. 5(ii) of the Act is not maintainable. Since we have held that the appeal is not maintainable, the question of condoning the delay in filing the appeal does not arise. In the circumstances, we dismiss this petition.