VISWANATHAN Vs. DISTRICT JUDGE

JUDGEMENT

(1.) THIS Original Petition filed under Art. 227 of the Constitution is in challenge of an order passed by a District Judge while functioning as vacation judge under S. 19 (2) of the Kerala Civil Courts Act, 1957 (for short "the Act" ). In a suit filed during midsummer vacation before the District Court, an application for temporary injunction was filed by the plaintiff to restrain the defendant from conveninga meeting to transact certain business including election of an office bearer. The regular court to entertain the suit is the Munsiff's Court, but for the fact that civil courts were closed during vacation. Hence the suit was filed in the District Court by virtue of S. 19 of the Act. The opposite party entered appearance in the District Court and filed a counter statement in resistance of the application for temporary injunction. Upon this, learned District Judge refrained from passing any order holding that there is 'legal embargo" for him while functioning as vacation court to pass orders on the merits of the contentions since the other side contested the application. Hence learned District Judge posted the application to a date beyond reopening of the court after mid-summer recess to enable the Munsiff's court to dispose of the same. The aforesaid action of the learned District Judge is challenged in this Original Petition.

(2.) LEARNED District Judge, in support of his action, has observed thus: "if an order is passed taking into consideration the contentions of both parties then the order would amount to an order on merits which this court has no jurisdiction to pass in view of the provisions contained in S. 19 (2) of the Kerala Civil Courts Act, 1957 (as amended by the Act 33 of 1986) and also in the light of the principles laid down by the Honourable High Court of Kerala in a decision reported in 1988 (2) K. L.T. 32 ( Viswambharan vs. Damodaran Nair) as the order on merits could be passed only by the Munsiff's Court, Cannanore , after the reopening of the court". S. 19 (2) of the Act reads thus : "during the adjournment of a civil court, the High court shall have the power to make provisional orders in all urgent matters and for such purpose to receive appeals, plaints and petitions which would ordinarily be presented to such civil court and any such order shall remain in force only until the matter has been heard and decided by the court having jurisdiction". It is clear, on a reading of the aforesaid provision, that the nominated District Judge has the power to make provisional orders on urgent matters as would be presented to such civil courts and received in the district Court during vacation. The only snag attached to any such provisional order is that it would remain in force only until the matter is heard and decided by the court having jurisdiction after the expiry of the vacation. If the reasoning adopted by the learned District Judge gets approval, its consequence would toe that any emergent action moved in the vacation court could easily be frustrated or scuttled by the opposite party by merely entering appearance and filing a counter. If that becomes the position, then the district Judge as a vacation court can pass only ex parte orders in the absence of the other side. This is certainly not the purport of S. 19 (2), nor the intention of the legislature in making such a provision. The decision in Viswambharan v. Damodaran Nair (1988 (2) K. L. T. 32) would not support or justify the course of action adopted by the learned district Judge. Provisional order is not to be understood as necessarily ex parte order. If an order has to be passed after hearing the other side that also can be provisional order, if it is in exercise of the powers under S. 19 (2) of the Act. LEARNED District Judge was, therefore, clearly in error in holding that he has no power to pass orders when the opposite side contests the application. For the aforesaid reasons, I quash Ext. P4 order. No further direction need be made now, since the case has already been seized by the regular court on the reopening after mid-summer vacation. Original Petition is disposed of in the above terms. Issue carbon copy on usual terms. . .