Kerala High Court
M/S. Mikhail Andoni ... vs Phygicart E-Commerce Pvt Ltd on 14 August, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
MONDAY, THE 14TH DAY OF AUGUST 2023 / 23RD SRAVANA, 1945
OP(C) NO. 1663 OF 2023
IN CS 2/2023 OF THE COMMERCIAL COURT, IRINJALAKUDA
PETITIONER/PLAINTIFF:
M/S. MIKHAIL ANDONI CONSTRUCTIONS
CHELODE, CHELODE P.O, PALLIKKUNNU, KANNUR DISTRICT
REPRESENTED BY ITS PROPRIETOR GEORGE ANTONY, AGED 45
YEARS, S/O. GEORGE, KAYALAPARAMBIL HOUSE, CHELODE P.O,
KANNUR, PIN - 670014
BY ADV MAHESH V.MENON
RESPONDENTS/DEFENDANTS:
1 PHYGICART E-COMMERCE PVT LTD
EAST FORT, CHEMBUKKAVU VILLAGE, THRISSUR DISTRICT
REPRESENTED BY ITS CHIEF OPERATING OFFICER,
PIN - 680020
2 PROJECT ENGINEER
PHYGICARY E-COMMERCE PVT LTD, CONSTRUCTION SITE,
KOLLUTHOOR, NELLAYI VILLAGE , THRISSUR DISTRICT, PIN -
680684
3 OLIVEA PROJECTS
G1 GAYATHRI APPARTMENTS, SANKARANKULANGARA TEMPLE ROAD,
POONKUNNAM, PO, THRISSUR DISTRICT REPRESENTED BY ITS
PROPRITOR, PIN - 680002
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 14.08.2023,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(C) NO.1663 OF 2023 2
Dated this the 14th day of August, 2023
JUDGMENT
The original petition is filed to direct the Commercial
Court, Irinjalakuda, to expeditiously dispose of C.S.
No.2/2023, within a time period to be fixed by this Court.
2. The petitioner's case is that, it is a proprietary
concern doing construction work. In order to realise
money from the respondents and for consequential
reliefs, the petitioner has preferred the above suit against
the respondents. The respondents have filed
O.S.No.985/2022 before the Court of the Munsiff,
Irinjalakuda, seeking a decree of injunction. The
pendency of C.S.No.2/2023 is causing hardship to the
petitioner. Hence, there may be a direction to the
Commercial Court to consider and dispose of the same,
immediately.
3. Heard; Sri. Mahesh V. Menon, the learned the
counsel appearing for the petitioner, on admission.
4. The Code of Civil Procedure, 1908 lays down the
procedure to be followed by civil courts right from the
institution of the suit till the execution of the decree.
5. It is trite, the supervisory jurisdiction of this Court
under Article 227 of the Constitution of India is to be
exercised sparingly and in cases of exceptional rarity. The
power under this Article casts a duty on this Court to
keep Courts of the District Judicature and Tribunals
within their bounds of authority and see that they
discharge their functions as per the mandate prescribed
under law. But, that does not mean that this Court is to
intermeddle with the proceedings before the Courts/
Tribunals, at each and every stage, that too on the mere
asking of parties, particularly to dispose of a suit in
precedence to older pending matters.
6. On an appreciation of the pleadings and materials
on record, it is seen that Ext P1 plaint has been
instituted on 6.1.2023. The respondents have filed
Ext.P2 written statement only on 18.7.2023. The suit has
not reached the pre-trial stage. Thus, I am of the view
that the suit is only at its nascent stage.
7. In Shiju Joy.A vs. Nisha [2021 (2) KHC 462], a
Division Bench of this Court has succinctly held that in
cases pending before the Family Courts, if a litigant
desires to get an out-of-turn disposal, then such person
has to first move the Family Court by way of an
interlocutory application stating the reasons for the
expeditious consideration of the matter. Only if the
Family Court rejects such request, the party can invoke
the supervisory jurisdiction of this Court under Article
227 of the Constitution of India.
8. Recently, another Division Bench of this Court in
Prema Joy vs. John Britto [2023 LiveLaw (Ker) 235],
following the principles in Shiju Joy (supra), has
emphatically held that 'out-of-turn' hearings cause
injustice to other litigants. Deviation from the seniority,
on the basis of the date of filing, shall be permitted only
in exceptional cases and for genuine reasons. Merely
because a litigant has the means or resources to
approach this Court, with a prayer to expedite his case,
he shall not be permitted to jump the queue or steal a
march over other litigants, and get an undue advantage.
9. On an overall consideration of the pleadings and
the principles laid down in the aforecited precedents, I do
not find any extra-ordinary circumstances or pressing
reasons to exercise the power of superintendence of this
Court under Article 227 of the Constitution of India, to
direct the court below to expeditiously dispose of the suit
in question. There are no justifiable grounds made out in
the original petition, to direct the out of turn disposal of
the said suit, and upset the apple cart of the suits already
listed for trial before the court below, where there is a
huge backlog of suits and applications. Hence, this Court
leaves it to the absolute discretion and wisdom of the
court below to decide, whether the present suit is to be
disposed of in precedence to older pending matters. It
would be upto the petitioner to move the court below by
filing an application, seeking for an out-of-turn disposal of
the suit. If such an application is filed, the court below
shall consider the same as per the principles laid down in
Shiju Joy and Prema Joy (supra).
With the above observations, the original petition is
dismissed.
SD/-
C.S.DIAS, JUDGE
rmm14/8/2023
APPENDIX OF OP(C) 1663/2023
PETITIONER EXHIBITS
Exhibit P1 A TRUE COPY OF CS NO. 2/2023 ON THE FILES
OF THE COMMERCIAL COURT, IRINJALAKUDA
DATED 06.01.2023
Exhibit P2 A TRUE COPY OF WRITTEN STATEMENT FILED IN
CS NO. 2/2023 ON THE FILES OF THE
COMMERCIAL COURT, IRINJALAKUDA
