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2008 DIGILAW 393 (KER)

Gangadharan v. Gopi

2008-07-10

M.SASIDHARAN NAMBIAR

body2008
Judgment : This petition filed under Art.227 of Constitution of India is not numbered by the registry. At the instance of the petitioner, is sent to the court. The objection raised by the registry is that the order challenged is one passed under O.XXXIX Rr.1 and 2 of Code of Civil Procedure, which is appealable as provided under O.XLIII R.1(r) of Code of Civil Procedure. 2. Learned counsel appearing for petitioner, relying on the decision of a learned Single Judge of this court in Viswambharan v. Damodaran Nair (1988 (2) KLT 32), argued that the said case was identical, where an appeal filed before District Court was returned as not maintainable on The ground that the order challenged in the appeal was passed by District Judge in his capacity as vacation Judge and this court, finding that District Judge is incompetent to pass a final order in his capacity as Vacation judge, treated the final order as nonest and entertained the appeal as a revision under S.115 of Code of Civil Procedure. The argument of the learned counsel is that the same principle is to be applied in this case and though an appeal will lie against the final order passed in a petition filed under O. XXXIX Rr. 1 and 2, when the District Judge is Incompetent to pass a final order, there is no final order as the order is to be treated as honest in which case, petitioner is entitled to file a petition or challenge it under Art.227 of Constitution of India, in view of the proviso to S.115 of Code of Civil Procedure. 3. This court in Viswambharans case (supra) considered the effect of a final order passed by the District Judge, sitting as the Vacation Judge, in an application, which otherwise should have been disposed by the Munsiff. It was found that the Vacation Judge has no jurisdiction to pass a final order and he has only the jurisdiction to pass provisional order as the exigencies of the situation needs. 4. Following the earlier decision in Ramankutty V. Ayissakunhi (1987 (2) KLT 895), it was held that any other order beyond the provisional order is without jurisdiction and illegal because of the jurisdictional impairment on account of the circumspection to the powers. 4. Following the earlier decision in Ramankutty V. Ayissakunhi (1987 (2) KLT 895), it was held that any other order beyond the provisional order is without jurisdiction and illegal because of the jurisdictional impairment on account of the circumspection to the powers. It was found that as the final order is to be treated as nonest and S.115 of Code of Civil Procedure then stood, it can be treated as a revision. Thus the order was set aside and Munsiff was directed to pass final order. It is submitted by the learned counsel appearing for 5th defendant that some of the other defendants have filed appeal against the order and appeal is pending before Additional District Court, North Paravur and maintainability of that appeal itself is challenged by the respondents/plaintiffs. 5. When District Judges in their capacity as Vacation Judges are not entitled to pass final orders, what is the value of the final order passed by them. Whether all such orders are to he treated as nonest compelling the parties to approach this court either by filing a petition under Art.227 of Constitution of India or an appeal as against the final order, treating it as the final order. An order passed by the Vacation Judge during vacation can only be treated as an order passed by that court, which ordinarily should have dealt with the matter otherwise. Therefore if an order is passed by a Vacation Judge in an application in a suit, which otherwise should have been filed before the Munsiff, the order passed by the District Judge can only be treated as an order passed by the Munsiff. If that order is passed in a petition which should otherwise lie before Sub Court but for the vacation, the order is to be treated as an order passed by the Sub Judge, though the order is passed by District Judge in his capacity as Vacation Judge. If so treated, the final order passed by the District Judge is to be treated as the final order passed by either the Munsiff or Sub Judge as the case may be. In that case, it should he challenged before the forum where an appeal ordinarily lie against the order. Ext.P5 order passed by District Judge in I.A.2215 of 2007, which is challenged in this Writ Petition is to be treated as an order passed by the Munsiff. In that case, it should he challenged before the forum where an appeal ordinarily lie against the order. Ext.P5 order passed by District Judge in I.A.2215 of 2007, which is challenged in this Writ Petition is to be treated as an order passed by the Munsiff. If so, an appeal will lie before the District Court against that order as provided under O. XLIII R. 1(r). The order could therefore be challenged before District Court. Ext.P5 order was passed by one of the Additional District Courts at Ernakulam. Appeal against an order passed by Munsiff, North Paravur will ordinarily lie before Additional District Judge, North Paravur. Therefore petitioner is entitled to file an appeal before Additional District Court, North Paravur, treating Ext.P5 order as the final order passed by the Munsiff. If such an appeal is filed, District Judge shall treat it as an appeal filed against the order passed by the Munsiff. The appeal shall be disposed on merits. Issue a copy of the order to the petitioner.