ST JOHNS JACOBITE SYRIAN CHURCH Vs. FR JOHN

JUDGEMENT

(1.) This is a petition for condoning the delay of 7 days in filing the appeal under S.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 S.5(ii) of the Act was maintainable against the decision of the Single Judge in a civil miscellaneous appeal filed in terms of S.104 read with O.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.

(2.) The appeal is filed under S.5(ii) of the Kerala High Court Act. S.5(ii) reads thus:

(3.) 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 S.104 read with O.33 R.1(c) of the Code of Civil Procedure. The learned Single Judge who was entitled to hear the appeal in terms of S.3 of the Act, modified the order passed 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 S.5(ii) of the Act. Going by the language of S.5(ii) of the Act, it may be possible to say that the appeal would be maintainable.