W.P.(C) No. 24105 of 2010 (O) — Secretary, Kanichar Grama Panchayat v. Kochuthazathu Joseph

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 15TH SEPTEMBER 2010 / 24TH BHADRA 1932 WP(C).No. 24105 of 2010(O) -------------------------IA NO.1590/2010 IN IA NO.1553/2010 IN OS.189/2006 of MUNSIF COURT, KUTHUPARAMBA .................... PETITIONER(S): --------------- THE SECRETARY,KANICHAR GRAMA PANCHAYAT POST KANICHAR, THALASSERRY TALUK KANNUR DISTRICT. BY ADV. SRI.K.MOHANAKANNAN SRI.ANIL.D.KAITHAKKAL RESPONDENT(S): --------------- KOCHUTHAZHATHU JOSEPH, S/O.VARGHESE, KANICHAR AMSOM DESOM, KOLAKKAD PO.,THALASSERY, KANNUR DISTRICT-670673. ADV. SRI.K.V.PAVITHRAN SRI.JAYANANDAN MADAYI PUTHIYAVEETTIL SRI.T.P.SAEED SRI.NIYAS MOOPPAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/09/2010, ALONG WITH RP NO.831/2010 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **WP(C) NO.24105/2010** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** EXT.P1 TRUE COPY OF THE PLAINT IN OS NO.189/2006 DATED 25.08.2006 ON THE FILE OF THE COURT OF MUNSIFF, KUTUPARAMBA EXT.P2 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER IN OS NO.189/2006 ON THE FILE OF THE COURT OF MUNSIFF, KUTUPARAMBA EXT.P3 TRUE OPY OF THE AFFIDAVIT FILED IN SUPPORT OF IA NO.1221 OF 2006 IN OS NO.189/2006 DATED 25.8.2006 AND THE ORDER OF INTERIM INJUNCTION EXT.P4 TRUE COPY OF AMENDED WRIT STATEMENT FILED AS PER ORDER IN IS 2207/2010 IN OS 189/2006 EXT.P5 TRUE OPY OF ORDER PASSED BY THE SUB DIVISIONAL MAGISTRATE IN MP NO.24/2006 DATED 30.6.2010 EXT.P6 TRUE COPY OF THE APPLICATION FOR TEMPORARY INJUNCTION FILED AS IA NO.1590/2010 IN IA NO.1553/2010 IN OS 189/2006 EXT.P7 TRUE COPY OF ORDER OF STATUS QUO AND NOTICE DATED 3.7.2010 IN IA NO.1590/2010 IN IA NO.1553/2010 IN OS 189/2006 EXT.P8 TRUE COPY OF ORDER DATED 13.7.2010 IN IA NO.1590/2010 IN IA NO.1553/2010 IN OS 189/2006 //TRUE COPY// ## **THOMAS P.JOSEPH, J.** **==================================== W.P(C) No.24105 of 2010 and R.P. No.831 of 2010 in W.P(C) No.24105 of 2010 ==================================== Dated this the 15[th] day of September, 2010** ## **J U D G M E N T** This Writ Petition is filed by the defendant challenging the order of interim injunction passed by the learned Munsiff, Kuthupramba on I.A. No.1590 of 2010 (in O.S.No.189 of 2006) after the suit was dismissed for default. Respondent-plaintiff is running a piggery, according to him small in size. Alleging that petitioner/defendant is attempting to interfere with running of the piggery respondent filed the suit for a declaration that running of the piggery does not create any hygienic problem to the public and for injunction . That was necessitated on account of a proceeding pending before the Sub Divisional Magistrate concerned under Sec.138(1) of the Code of Criminal Procedure (for short, “the Cr.P.C.”). A final order was passed by that authority holding that running of the piggery amounts to a public nuisance. Petitioner resisted the suit contending that the piggery is causing much nuisance to the public, respondent has no licence to run the ## **W.P(C) No.24105 of 2010 & R.P. No.831 of 2010** ## -: 2 :- piggery and that stop memo had been issued to the respondent to stop the piggery but that has not been complied with. Learned Munsiff passed an order of interim injunction in the suit restraining petitioner from interfering with running of the piggery. While so the suit was dismissed for default. Respondent filed I.A. No.1553 of 2010 for restoration of the suit. While that application was pending, respondent filed I.A.No.1590 of 2010 for an order of temporary injunction under Section 94(c) of the Code of Civil Procedure (for short, “the Code”). Learned Munsiff after hearing both sides passed Ext.P8, order of injunction on that application until decision on I.A.No.1553 of 2010 (filed for restoration of the suit). That order (Ext.P8) is challenged in this Writ Petition at the instance of petitioner/defendant. When the matter came up for hearing on 07.09.2010 it was contended on behalf of petitioner that in spite of having no licence as required under the Panchayat (Licensing of Pigs and Dogs) Rules, 1998 (Kerala) (for short, “the Rules”), respondent is running the piggery which amounts to violation of provisions of the Rules. Learned counsel for petitioner placed reliance on the decision of this Court in **Thomas George v. Revenue Divisional Officer** (2005 ## **W.P(C) No.24105 of 2010 & R.P. No.831 of 2010** -: 3 :- [4] KLT 562). Learned counsel for respondent admitted that presently respondent has no licence to run the piggery though he had applied for one. I heard counsel on both sides and passed an order (on 07.09.2010) holding that since admittedly respondent is not having a licence and relevant provisions in the Rules and the decision referred to above required a licence to run the piggery, respondent shall not run the piggery until a licence is obtained in accordance with the Rules for the said purpose. Respondent has filed R.P. No.831 of 2010 seeking review of the said order. 2. Learned counsel for respondent contends that order passed by the Sub Divisional Magistrate under Sec.138(1) of the Cr.P.C. is under stay from the Sessions Court, Thalassery as per order dated 12.07.2010 and that the piggery is not one which was established without a licence. It was in existence for the last 22 years and after passing of the resolution making the relevant Rules applicable to the panchayat, respondent submitted application for the issue of a licence but no decision thereon was taken. Learned counsel submits that I.A. No.1553 of 2010 for restoration of the suit is coming up for hearing on 18.09.2010 and hence either the order of this Court dated 07.09.2010 may be ## **W.P(C) No.24105 of 2010 & R.P. No.831 of 2010** -: 4 :- reviewed or the said order may be kept in abeyance until 18.09.2010. Learned counsel for petitioner contends that learned Munsiff should not have passed Ext.P8, order on I.A. No.1590 after the suit was dismissed (for default) and on the face of the order of Sub Divisional Magistrate under Sec.138(1) of the Cr.P.C., holding that running of piggery amounts to public nuisance. 3. Question concerned in this Writ Petition is whether learned Munsiff was competent to pass an order of injunction on I.A. No.1590 of 2010 until decision on the application for restoration of the suit. True, Order XXXIX of the Code refers to grant of temporary injunction in a (pending) suit and in the present case the suit is not pending as it was dismissed for default. But that does not prohibit the court from granting an order of injunction in appropriate cases either in exercise of its supplementary power under Sec.94 of the Code or making use of its inherent power under Sec.151 of the Code if such an order is required to prevent the ends of justice being defeated. The Madras High Court in **T.Panneerselvam v. A.Baylis** (AIR 1986 Madras 284) has held that when a suit is dismissed for default and an application for restoration is pending it is within ## **W.P(C) No.24105 of 2010 & R.P. No.831 of 2010** -: 5 :- the power of the court to grant injunction until disposal of the application for restoration. The Supreme Court **Tanusree Basu and Others v. Ishani Prasad Basu and** **Others** ([2008] 4 SCC 791) has also stated that court can grant interim injunction even in cases not covered by Order XXXIX Rule 1 of the Code. Hence I do not find any jurisdictional error in the learned Munsiff allowing I.A.No.1590 of 2010 and granting injunction until decision on the application for restoration. Hence no interference is required with Ext.P8, order in exercise of the power under Article 227 of the Constitution. It petitioner wishes to discharge,vary or set aside that order, petitioner could approach the learned Munsiff for appropriate reliefs. 4. Now I shall refer to the petition for review. Even in the petition for review there is no case that the piggery in question does not require a licence as per Rules. The grounds set up in the review are that order of the Sub Divisional Magistrate Under Sec.138(1) of the CR.P.C. is stayed by the Sessions Court in revision and that the piggery has been functioning for the last so many years (without licence) and when the Rules were made applicable, an application for issue of licence was preferred but ## **W.P(C) No.24105 of 2010 & R.P. No.831 of 2010** ## -: 6 :- no order was passed by the petitioner in the Writ Petition. The interim order passed on 07.09.2010 was not based on the decision of the Sub Divisional Magistrate. Instead It was merely based on the fact that at present there is no licence in favour of respondent and the Rules required a licence to run the piggery as held by this Court in **Thomas George v. Revenue Divisional Officer** (supra). If the order is not correct remedy available to the respondent is not by way of a review but to challenge that order. I do not find any justifiable reason or circumstance to review the order dated 07.09.2010. Hence the request for review is disallowed. 5. However, the order dated 07.09.2010 has been passed in the Writ Petition which is in challenge of the order on I.A.No.1590 of 2010 whereby the learned Munsiff has granted injunction till disposal of I.A. No.1553 of 2010. It is not disputed by either side that the order of injunction was granted by the learned Munsiff with respect to the allegations regarding nuisance or its non-existence. Hence I make it clear that the order of interim injunction passed by this Court on 07.09.2010 will remain in force only till the disposal of I.A. No.1553 of 2010. ## **W.P(C) No.24105 of 2010 &** ## **R.P. No.831 of 2010** -: 7 :- I also make it clear that if I.A. No.1553 is allowed by the learned Munsiff, and the suit is restored to file, it will be open to the parties to agitate before learned Munsiff the question as to the necessity or otherwise of the licence for running the piggery and seek appropriate interim orders from the learned Munsiff in that regard. If restoration of the suit is not allowed, it is open to the petitioner to proceed in the matter as provided under law. Since I.A. No.1553 of 2010 is coming up for hearing on 18.09.2010 I direct that operation of the order dated 07.09.2010 in this Writ Petition will remain in abeyance till 18.09.2010. Subject to the above observations Writ Petition and the Review Petition are dismissed. ## **THOMAS P. JOSEPH, JUDGE.** vsv