P.K. Balasubramanyan, J.

This petition is filed by the plaintiff in O.S. No. 513 of 1997 on the file of the II Additional Subordinate Judge's Court, Ernakulam who was respondent No.1 in C.M.A. No. 131 of 1998. C.M.A. No. 131 of 1998 was filed by the first defendant in that suit challenging an interim order of injunction passed by the trial court in exercise of its jurisdiction under O. XXXIX R.1 of the Code of Civil Procedure restraining the first defendant from interfering with the plaintiffs peaceful possession and enjoyment of two flats in his possession with his rights to enjoy the common facilities and from making any construction in the common property and giving possession of the common area to strangers and from allowing the strangers to enjoy the common facilities. This Court by the order dated 5.11.1999 confirmed the order of injunction passed by the trial court and dismissed the appeal filed by the first defendant in the suit. We may notice that though the first defendant approached the Supreme Court with a petition for special leave to appeal to that court challenging the decision of this Court in C.M.A. No. 131 of 1998, that petition was dismissed by the Supreme Court.

2. The present petition C.M.P. No. 3322 of 2000 is filed by the plaintiff, the first respondent in C.M.A. No. 131 of 1998 invoking O. XXXIX R.2-A of the Code of Civil Procedure. According to the plaintiff, the petitioner, the first defendant has violated the order of injunction passed by the trial court and confirmed by this Court in appeal and since the order of the trial court in I. A. No. 5243 of 1997 had merged in the decision of this Court in C.M.A. No. 131 of 1998, the application under O. XXXIX R.2-A of the Code of Civil Procedure was being filed before this Court. Of course, the filing of the petition for special leave to appeal to the Supreme Court and the rejection of that application does not bring about a merger of the decision of this Court with that of the Supreme Court in the light of the recent decision of the Supreme Court in Kunhayammed v. State ofKerala(20QO (3) KLT 354 (SC)). It is therefore submitted by the plaintiff that the application lies to this Court and this court may take action against first respondent for violation of the interim injunction. The first defendant has filed a counter affidavit denying the allegation of violation of the interim order of injunction. The first defendant has also raised a preliminary objection that the proceeding under O. XXXIX R.2-A of the Code of Civil Procedure is a proceeding of an original nature and the application would lie only before the trial court which was in seisin of the suit and in which the suit was pending. Since the preliminary objection was raised regarding the maintainability of the petition in this Court, that objection was heard preliminarily.

3. According to learned counsel for the first defendant, the proceeding under O. XXXIX R.2-A of the Code of Civil Procedure is an original proceeding. It had therefore to be instituted in the lowest forum on the principle of S.15 of the Code of Civil Procedure. Moreover, in this case, the suit itself was still pending and therefore the appropriate court to which that application could be made, was the court of first

instance. Counsel did not dispute that the order of the trial court in I.A. No. 5243 of 1997 in which the order of injunction was granted had merged in the order of this court in C.M.A. No. 131 of 1998. But according to counsel, the principle of merger cannot affect the question of the application under O. XXXIX R.2-A of the Code of Civil Procedure being maintainable only in the trial court and not in the appellate court. Counsel submitted that the order that may be made under O. XXXIX R.2-A of the Code of Civil Procedure was an appealable order in terms of S.104 of the Code of Civil Procedure read with O. XLIII R.1 of the Code of Civil Procedure and if this Court were to entertain the application as a court of