IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 1ST FEBRUARY 2011 / 12TH MAGHA 1932 CRP.No. 42 of 2011 OS.218/2003 of MUNSIFF'S COURT,VARKALA REVN. PETITIONER: IST DEFENDANT ---------------------------------- RAJENDRAN NAIR, S/O.VELUPILLAI, PUTHUVALVILA VEEDU, KANNAMBA DESOM, VARKALA VILLAGE. BY ADV. SRI.M.R.RAJESH SRI.K.M.ALEXANDER SMT.A.K.PREETHA SMT.GEETHA JOB(OZHUKAYIL) RESPONDENT: PLAINTIFF ------------------------ GOPALAKRISHNAN NAIR, S/O.KUNJUKRISHNA PILLAI, PUTHUVALVILA VEEDU, KANNAMBA DESOM, VARKALA DESOM. BY ADV. SRI.R.ANILKUMAR THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 01/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ C.R.P. NO. 42 OF 2011 D ------------------------------------------------------ Dated this the 1st day of February, 2011 O R D E R The petitioner, the defendant in O.S.No.218 of 2003 on the file of the Munsiff's Court, Varkala, contended that the suit is not maintainable. That contention was apparently not accepted in the order passed by the trial court, which was challenged by the petitioner in C.R.P.No.556 of 2008. As per Annexure A order dated 21.11.2008, C.R.P.No.556 of 2008 was allowed, the order passed by the trial court was set aside and the matter was remanded to the court below with a direction to consider issue No.1 afresh. For the sake of convenience, the order in C.R.P.No.556 of 2008 is extracted below: “Heard counsel on both sides. 2. Petitioner/defendant raised a contention in the court below as regards maintainability of the suit O.S.No.218/03 on the file of the Munsiff's Court, Varkala contending that O.S.No.218/00 filed by the plaintiffs before that court earlier was withdrawn and it is thereafter that the present suit is filed and that therefore, the present suit is barred by res judicata. According to the respondents, the suit O.S.No.218/00 was withdrawn C.R.P. NO.42 OF 2011 D :: 2 :: with leave to institute fresh suit and in compliance with order passed on the said application, viz., I.A.No.607/03 in O.S.No.218/00 and cost has also been deposited and therefore, there is no bar for the present suit. 3. The question, therefore, for consideration is as to what was the prayer made in I.A.No.607/03 filed in O.S.No.218/00; as to what was the order passed thereon by the court; whether leave was granted and if so on what condition as to what is the judgment/decree in O.S.No.218/00 and as to whether there is compliance with the direction if any of the court, for enabling withdrawal of the suit with leave. The necessary documents to establish those aspects were produced before the trial court by the defendant is what is submitted before me by the counsel for the petitioner/ defendant. But, the court below is not seen to have considered any of those aspects specifically discussing the above documents, the date of deposit of the amount in compliance with the order granting leave conditionally, etc. In the result, this revision petition is disposed of setting aside the impugned order of the court below and remitting the matter back to the court below to consider issue No.1 afresh on merit and pass appropriate orders as expeditiously as possible.” C.R.P. NO.42 OF 2011 D :: 3 :: 2. Thereafter, the court below passed the order dated 15.9.2010, which reads as follows: “Since the maintainability of the suit is mixed with question of law and facts, this can be considered after taking evidence. Hence adjourned for Pre Trial Steps to 29.9.10.” 3. The trial court did not comply with the direction issued by this Court. Not only that the order passed by the court below is cryptic, but the questions which were directed to be considered by the court below were not considered. On that short ground, the order dated 15.9.2010 passed by the court below is set aside and the matter is remanded to the court below for fresh disposal after considering the questions directed to be considered as per the order dated 21.11.2008 in C.R.P.No.556 of 2008. The court below shall pass orders on or before 15.3.2011. The Civil Revision is allowed as above. (K.T.SANKARAN) Judge ahz/