V.V. Khalid Haji vs Susheela K.B. and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **FRIDAY, THE 07TH DAY OF JUNE 2019 / 17TH JYAISHTA, 1941** ## **WP(C).No. 18590 of 2013** **AGAINST THE ORDER IN APPEAL 132/2013 of K.S.CONSUMER DISP.REDRESSAL,COMN.TVM DATED 08-03-2013** ## **PETITIONER/S:** **V.V. KHALID HAJI, AGED 65 YEARS, S/O KUNJAMMED, VALLANA VALAPPIL, V.V.K. SONS, CHEMMAD, THIRURANGADI P.O., MALAPPURAM-676306.** **BY ADVS. SRI.R.SUDHISH SMT.M.MANJU SRI.K.R.RANJITH** ## **RESPONDENT/S:** |**1**|**SUSHEELA K.B.**| |---|---| ||**W/O LATE P.APPAKUNHI, LATHA NIVAS, PALAKKUNNU, BEKAL**| ||**P.O., PALLIKKARA, KASARGOD-671 316.**| |**2**|**SHAILAJA P.**| ||**D/O LATE P.APPAKUNHI, LATHA NIVAS, PALAKKUNNU, BEKAL**| ||**P.O., PALLIKKARA, KASARGOD-671 316.**| |**3**|**RAVINDRAN**| ||**S/O LATE P.APPAKUNHI, LATHA NIVAS, PALAKKUNNU, BEKAL**| ||**P.O., PALLIKKARA, KASARGOD-671 316.**| |**4**|**USHA P.**| ||**D/O LATE P.APPAKUNHI, LATHA NIVAS, PALAKKUNNU, BEKAL**| ||**P.O., PALLIKKARA, KASARGOD-671 316.**| |**5**|**SUGANDHI P.**| ||**D/O LATE P.APPAKUNHI, LATHA NIVAS, PALAKKUNNU, BEKAL**| ||**P.O., PALLIKKARA, KASARGOD-671 316.**| |**6**|**SASHIKUMAR P.**| ||**S/O LATE P.APPAKUNHI, LATHA NIVAS, PALAKKUNNU, BEKAL**| ||**P.O., PALLIKKARA, KASARGOD-671 316.**| 2 WP(C).No. 18590 of 2013 - **7 LATHA P D/O LATE P.APPAKUNHI, LATHA NIVAS, PALAKKUNNU, BEKAL P.O., PALLIKKARA, KASARGOD-671 316.** - **8 MS. EVERSTAR INDIA AGRO INDUSTRIES LIMITED KINFRA PARK, SEETHANGOLI, KASARGOD-671 124.** - **9 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, CIVIL SUPPLIES DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695001.** **ADDL R9 IS IMPLEADED AS PER ORDER DATED 12.09.2013 IN I.A.12419/13** **BY ADVS. R1 TO R6 SRI.M.V.AMARESAN SRI.PHILJO VARUGHESE PHILIPS** **ADDL. R9 SMT.B.VINITHA, GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07.06.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 WP(C).No. 18590 of 2013 ## **JUDGMENT** This writ petition is filed by the petitioner seeking the following relief:- _i) Issue a writ of certiorari or the other appropriate writ, order or direction, quashing Exhibit P3 Order dated 08.03.2013 in Appeal No.132 of 2013 on the filed of the Kerala State Consumer Redressal Commission, Thiruvananthapuram._ 2. Basic material facts for the disposal of the writ petition are as follows:- Petitioner is the appellant in appeal No.132/13 on the files of the Kerala State Consumer Disputes Redressal Commission, against the order of the District Forum in C.C.No.169/2010 on the files of the Consumer Disputes Redressal Forum, Kasargod, originally filed by husband of the 1[st] respondent herein and father of respondents nos. 2 to 7. Complainant deposited Rs.10 lakhs with the opposite party towards fund mobilisation of 8[th] respondent herein on condition that, a sum of 4 WP(C).No. 18590 of 2013 Rs.25,000/- shall be paid to the complainant towards interest thereof on every month on the basis of the agreement. Anyhow the fact remains, order was passed against the petitioner and being aggrieved appeal was preferred before the State Commission, State Commission apparently directed the petitioner to remit Rs.5 lakhs for the purpose of entertaining the appeal. It is this order passed by the State Commission, which is challenged before this Court. When this writ petition came up for admission, while directing the Registry to number the writ petition, this Court has noted that the maintainability of the writ petition will have to be argued in due course. 3. I have heard learned counsel for the petitioner and perused the pleadings and documents on record. In my considered view, the question with respect to entertainability of the writ petition against any order passed by the Consumer Commission or District Forum was considered the Apex COurt in _**Nivedita Sharma v.Cellular Operators Assn. of India & Others [2011 (13) SCALE 585]**_ and held that normally and ordinarily a writ WP(C).No. 18590 of 2013 petition shall not be entertained against any orders passed by the State Commission or the District Forum. In my considered view, the proposition of law laid down there under squarely applies to this case. Moreover this petition was pending before this Court with an order of status quo as on 26.07.2013. I do not know whether the subject matter of appeal still pending consideration before the State Commission. Anyhow, if the appeal is pending, petitioner will have to take necessary steps to get the appeal disposed of. Anyhow, as per the proposition of law laid down by the Apex Court as above, the writ petition cannot be entertained. So also I have come across the order of the Apex Court in SLP(C) No.24228-24229 of 2012 dated ## 6.8.2012 in **Cicily Kallarackal v. Vehicle Factory** and the following observation is relevant to the context: “While declining to interfere in the present Special Leave Petition preferred against the order passed by the High Court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India, we hereby make it clear that the order of the Commission are incapable of being questioned under the writ jurisdiction of the High 6 WP(C).No. 18590 of 2013 Court, as a statutory appeal in terms of Section 27A(1) (c) lies to this court. Therefore, we have no hesitation in issuing a direction of caution that it will not be proper exercise of jurisdiction by the High Courts to entertain writ petitions against such orders of the Commission.” Therein, the Apex Court has considered the question of entertaining the writ petition by the High Court against the order passed by the National Commission. The principles of law laid down thereunder clearly applies to the facts and circumstances of the case also. 4. Moreover,a learned single Judge of this Court has considered the issue after making an elaborate survey of the judgments rendered by this Court as well as the Apex Court in _**Regional Manager and Another v.State of Kerala and Others [ I.L.R 2019(2) Kerala 692]**_ and has held that a writ petition is not maintainable under law from the order passed by the Consumer Forum as well as the State Commission I am in respectful agreement with the proposition of law laid down so. WP(C).No. 18590 of 2013 5. In view of the aforesaid aspects, I do not think the writ petition is sustainable under law. Therefore the writ petition fails, according it is dismissed, however leaving open the liberty of the petitioner to pursue all his remedies before the State Commission if the appeal is still pending consideration. **Sd/-** ## **SHAJI P.CHALY** **JUDGE** hmh 8 WP(C).No. 18590 of 2013 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 EXHIBIT P1: COPY OF THE ORDER DATED 4.12.2012 IN C.C.NO.169 OF 2010 OF THE CONSUMER DISPUTES REDDRESSAL FORUM, KASARAGOD.** **EXHIBIT P2 EXHIBIT P2: COPY OF THE MEMORANDUM OF APPEAL NO.132 OF 2013 FILED BY THE PETITIONER BEFORE THE KERALA STATE CONSUMER DISPUTES REDDRESSAL COMMISSION, THIRUVANANTHAPURAM.** **EXHIBIT P3 EXHIBIT P3: COPY OF THE ORDER DATED 8.3.2013 IN APPEAL NO.132 OF 2013 OF THE KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, THIRUVANANTHAPURAM.** **RESPONDENT'S/S EXHIBITS: NIL**