IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 21ST AUGUST 2008 / 30TH SRAVANA 1930 FAO.No. 33 of 2008() -------------------- AGAINST THE ORDER DATED 20/11/2007 IN IA 3090/2007 IN OS.152/2007 of PRINCIPAL SUB COURT,PARAVUR .................... APPELLANT/PLAINTIFF/PETITIONER ----------------------------------------------- C.J.ANTO, PROPRIETOR, C.G.LUBRICANTS, HOUSE NO.VI/592, INDUSTRIAL DEVELOPMENT AREA, BINANIPURAM P.O., EDAYAR. BY ADV. SRI.C.K.ABDUL RAHIM RESPONDENTS: DEFENDANTS/RESPONDENTS ----------------------------------- 1. K.N.PRASAD, S/O.LATE K.K.NARAYANAN, KUZHIPARAMBIL HOUSE, S.H.M. KOTTAYAM - 6. 2. MEENA PRASAD, W/O.PRASAD, KUZHIPARAMBIL HOUSE, S.H.M. KOTTAYAM - 6. BY ADV. SRI.B.PREMOD THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 21/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER IN I.A. NO.494/2008 DISMISSED. 21/8/2008 SD/- P.R. RAMAN, JUDGE. SD/- T.R. RAMACHANDRAN NAIR, JUDGE. // TRUE COPY // P.S. TO JUDGE P.R.Raman & T.R. Ramachandran Nair, JJ. - - - - - - - - - - - - - - - - - - - - - - - - F.A.O. No. 33 of 2008 - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 21st day of August, 2008. JUDGMENT Ramachandran Nair, J. This appeal is filed against the order in I.A.No.3090/07 in O.S.No.152/07 of the Principal Sub Court, N. Paravoor, whereby the court below has returned the plaint for the purpose of presenting it to the proper court. 2. We have heard learned counsel appearing for the parties. Learned counsel for the appellant submitted that the reasons stated by the court below in the order impugned, to return the plaint are not correct. It is argued that the suit is filed seeking recovery of money from the person of the defendants and there was no specific prayer for getting a decree charged on any immovable properties. Immovable properties have not been scheduled in the plaint also. 3. Learned counsel for the respondents submitted that a reading of para 4 of the plaint along with the reliefs will show that it is really a case where the plaintiff seeks for a decree for recovery of money with a charge on the property mentioned in the plaint. Our attention has been invited to FAO 33/2008 -2- the list of documents furnished in the plaint in support of the above argument. 4. The plaintiff in para 4 of the plaint after stating about the transactions leading to the dispute mentions about the consent given by the second defendant for realising the amount appropriated by the first defendant from her properties. The details of the properties thus offered are alone stated therein. In the relief portion it is clearly prayed that the court may be pleased to pass a decree for the plaint amount with future interest at 12% to be realised from the defendants and their properties. In tune with the averments in para 4 of the plaint, along with the list of documents, the concerned document No.2890 of 2003 of the Office of the Sub Registrar, Kottayam has also been produced. After considering these aspects, the court below has directed to return the plaint to be presented before the appropriate court, within whose jurisdiction the property lies and the defendants are residing and carries on their business. 5. We find no reason to interfere with the order impugned. The finding that the plaint averments will show that the title deed of the property described in para 4 of the plaint has been offered by the second defendant as security for payment of money due to the plaintiff from the first defendant, cannot be said to be wrong. In that view of the matter, it is clear that the FAO 33/2008 -3- suit is based on a charge upon the immovable property owned by the second defendant covered by document No.8 in the schedule of documents of the plaint. This property is situated at Kottayam and defendants are also residing and carrying on business at Kottayam. In the above view of the matter, we agree with the findings rendered by the court below. Therefore, the appeal is dismissed. The appellant is granted one month's time from today to get the plaint returned and present it to the proper court. No costs. ( P.R.Raman, Judge.) (T.R. Ramachandran Nair, Judge.) kav/