IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 24TH JULY 2008 / 2ND SRAVANA 1930 WP(C).No. 10115 of 2007(D) -------------------------- ORDER IN I.A.5564/06 & I.A.3435/06 IN OS.678/2004 of MUNSIFF'S COURT, TRIVANDRUM .................... PETITIONER: --------------------- A.M.NOUSHAD, THOPPIL HOUSE, KOLLAM. BY ADV. SRI.G.S.REGHUNATH RESPONDENTS: ------------------------- 1. M.JAMAL,TC 38/679,POWER HOUSE ROAD, TRIVANDRUM. 2. M.MAITHEEN BEEVI OF -DO-.DO.... 3. BADARUDEEN OF -DO-..DO... 4. SALAHUDEEN OF -DO-..DO.... BY ADV. SRI.K.B.PRADEEP R1,2,3 & 4 SRI.J.S.AJITHKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.10115/2007 D APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PLAINT IN O.S.NO.678/04 ON THE FILE OF THE MUNSIFF COURT, TRIVANDRUM. EXT.P2: COPY OF THE JUDGMENT IN CRP NO.1748/2001 OF THIS HON'BLE COURT. EXT.P3: COPY OF THE WRITTEN STATEMENT IN O.S.NO.678/04 ON THE FILE OF THE MUNSIFF COURT, TRIVANDRUM. EXT.P4: COPY OF THE JUDGMENT IN RCP NO.98/1984 OF THE MUNSIFF COURT, TRIVANDRUM. EXT.P5: COPY OF THE PETITION I.S.NO.5564/2006 IN O.S.NO.678/04 OF THE MUNSIFF COURT, TRIVANDRUM. EXT.P6: COPY OF THE I.A.NO.3435/06 IN O.S.678/04 OF THE MUNSIFF COURT, TRIVANDRUM. EXT.P7: COPY OF THE OBJECTION IN I.A.3435/06 OF THE MUNSIFF COURT, TRIVANDRUM. EXT.P8: COPY OF THE ORDER DTD. 1/02/2007 IN I.A.5564/07 IN O.S.678/04 OF THE MUNSIFF COURT, TRIVANDRUM. EXT.P9: COPY OF THE ORDER DTD. 5/02/206 IN I.A.3435/06 IN O.S.NO.678/04 OF THE MUNSIFF COURT, TRIVANDRUM. EXT.P10: COPY OF THE POST CARD SENT BY THE ADVOCATE COMMISSIONER IN O.S.678/04 OF THE MUNSIFF COURT, TRIVANDRUM. RESPONDENT'S EXHIBITS: EXT.R1(A): COPY OF THE PLAINT IN O.S.NO.1026/07 OF THE II ADDLL.MUNSIFF'S COURT, TRIVANDRUM. EXT.R1(B): COPY OF THE COMMISSION APPLICATION DTD. 14/06/07 IN O.S.NO.1026/07. /TRUE COPY/ P.A.TO JUDGE Kss M.SASIDHARAN NAMBIAR, J. ------------------------------- W.P.(C) No.10115 of 2007 ------------------------------- Dated this the 24th July, 2008. J U D G M E N T This petition is filed under Article 227 of the Constitution of India to quash Exts.P8 and P9 orders passed by Munsiff, Thiruvananthapuram, in O.S.No.678 of 2004. Petitioner is the second defendant in the suit. The suit is filed to demarcate the boundaries of plaint A and B schedule properties , to permit the plaintiffs to construct a permanent boundary wall of 5 feet height and also for permanent prohibitory injunction restraining defendants from disturbing or dispossessing plaintiffs from the buildings in the plaint A and B schedule properties, in execution of the order of eviction in RCP.No.98 of 1984, as confirmed in R.C.A.No.6 of 1993. Ext.P8 order was passed in I.A.No.5564 of 2007 which is an application filed by the defendants to decide issue No.2, viz., issue whether the suit is barred by resjudicata. It was dismissed under Ext.P8 order which reads as follows: W.P.(C) No.10115/2007 2 “The matter is posted for hearing for the last 4 months. The petitioner is not ready to argue the matter. Hence IA is closed and the suit is posted for trial in due course.” 2. Ext.P9 order is passed in I.A.No.3435/2006 filed by the plaintiffs to appoint a commission to measure and demarcate the properties as claimed in the plaint. It was allowed under Ext.P9 order, for the reason that as I.A.No.5564/2006 was allowed under Ext.P8, and so the commission application is also allowed. This petition is filed under Article 227 of Constitution of India to set aside those orders contending that learned Munsiff was not justified in dismissing I.A.No.5564 of 2006 without considering the merit and allowing I.A.No.3435 of 2006 on the ground that other application was dismissed. 3. In the plaint itself, respondents-plaintiffs admitted the order of eviction obtained by the defendants in RCP.No.98 of 1984, as confirmed in RCA.No.6 of 1993. Ext.P2 order of this Court shows that the revision filed challenging the order of eviction as confirmed by the Appellate authority on 31.1.2005. The case of the petitioners is W.P.(C) No.10115/2007 3 that the suit is instituted to prevent execution of the order of eviction obtained from the Rent Control Court and suit is barred by the principles of resjudicata. It is for that reason, learned Munsiff was requested to decide the issue on resjudicata as a preliminary issue. It was contended that learned Munsiff was not justified in dismissing the application without considering the same on merits. Ext.P8 order shows that learned Munsiff did not consider the question whether Issue No.2 which is sought to be heard as a preliminary issue is to be heard as a preliminary issue. On the other hand, petition was dismissed for the sole reason that though petition was being adjourned for four months, petitioner is not ready to argue the matter. Petitioner has stated that court was adjourning the petition not on account of the petitioner, but for other reasons and in such circumstances an adjournment sought on 1.2.2007, on the ground that the counsel is out of station should have been granted, and it was not justified in dismissing the application. 4. Sub-rule (2) of Rule 2 of Order XIV of Code of Civil Procedure provides that Court shall pronounce judgment on all issues. Under Sub-rule (1), notwithstanding that a case may be disposed of on a preliminary issue, subject to the provisions of sub- W.P.(C) No.10115/2007 4 rule (2), Court shall pronounce the judgment on all issues. Sub-rule (2) provides that where issues both of law and fact arise in the same suit and Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first and for that purpose, it may postpone settlement of the other issues until after the issue has been determined and may deal with the suit in accordance with the decision of the case, if that issue relates to either the jurisdiction of the court or a bar to the suit created by any law for the time being in force. It is invoking the said provision, petitioners filed I.A.No.5564 of 2006 to try issue No.1 as a preliminary issue contending that if that issue is to be answered against the plaintiff, suit is to be dismissed. 5. As the learned Munsiff has not considered the question whether Issue No.2 is to be decided, as provided under sub- rule (2) of Rule 2 of Order XIV of Code of Civil Procedure, and I.A.No.5564 of 2006 was not disposed on merit and that order was passed without hearing the petitioner, Ext.P8 order is quashed. As Ext.P9 was passed for the sole reason that I.A.No.5564 of 2006 was dismissed under Ext.P8 order, Ext.P9 order is also quashed. Learned Munsiff is directed to dispose both the applications afresh, after W.P.(C) No.10115/2007 5 hearing both sides. Petitioner is directed to get ready in the application and shall not seek any further adjournment, when the petition is posted for enquiry by the court. The writ petition is disposed as above. M.SASIDHARAN NAMBIAR, JUDGE nj.