IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 18TH AUGUST 2011 / 27TH SRAVANA 1933 OP(C).No. 2526 of 2011(O) -------------------------------- OS.248/2009 of ADDL.MUNSIFF COURT,KOCHI .................... PETITIONER/DEFENDANT ------------------------------ M.L.MOHANA CHANDRAN,S/O.LAXMANA HEGDE, AGED 60 YEARS,H.NO.CC 5/1075,PANDITHAN TEMPLE ROAD,KOCHI-2. BY ADVS. SRI.G.KRISHNAKUMAR SRI.TITTO THOMAS RESPONDENT(S): PLAINTIFF ---------------------------------- SREE KRISHNA SWAMI DEVASWAM,HAVING ITS OFFICE AT CC 5/977,GOPALAKRISHNAN AVENUE ROAD, KOCHI-2,REPRESENTED BY ITS TRUSTEE MR.PANDURANG K. PARANJAPE,S/O.V.PARANJAPE,DOOR NO.5/972, GOPALAKRISHNAN AVENUE ROAD,KOCHI-682 002. BY ADVS. SRI.V.V.ASOKAN SRI.P.P.RAMACHANDRAN THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 18/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs O.P.(C). NO. 2526/2011 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER HEREIN IN O.S. 248/2009 ON THE FILE OF ADDITIONAL MUNSIFF COURT, KOCHI. P2: COPY OF THE ORDER DATED 12/10/2010 IN O.S. NO.248/2009 OF THE ADDITIONAL MUNSIFF COURT, KOCHI. P3: COPY OF THE JUDGMENT DATED 13/10/2011 OF THE HONOURABLE COURT IN C.R.P. 621/2010. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A. TO JUDGE. svs THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.2526 of 2011 -------------------------------------- Dated this the 18th day of August, 2011. JUDGMENT Respondent, claiming to be a Hindu Religious Institution/Endowment governed by the Travancore-Cochin Religious Endowment Act and coming under the control of the Cochin Devaswom Board to which Chapter II of the said Act pertains, filed the suit for eviction of petitioner, a tenant of the building in question claiming exemption from the operation of Act 2 of 1965 in view of notification, S.R.O.No.2078 of 1993. Petitioner denied that respondent is a trust or devaswom entitled to the protection of the said notification and claimed that it is a private devaswom. Petitioner also denied that respondent was ever under the control and management of the Cochin Devaswom Board as pleaded by the respondent. Issue regarding maintainability of the suit was considered under Rule 2 of Order 14 of the Code of Civil Procedure (for short, “the Code”). Learned Additional Munsiff entered a finding that the suit is maintainable. That finding is under challenge in this proceeding. 2. Learned counsel for petitioner contends that the question whether respondent is entitled to protection of the notification referred above depends on various facts which are in dispute and hence, since disputed facts are also OP(C)No.2526/2011 2 involved, learned Munsiff was not correct in deciding the question above referred as a preliminary issue under Rule 2 of Order 14 of the Code. It is contended that the issue/question should have been left for decision at the trial stage. 3. Learned counsel for respondent contended that though the impugned order was passed on October 12, 2010 and a copy of the order was delivered to the petitioner as early as on October 29, 2010 this Original Petition is filed only on August 2, 2011. It is submitted that in view of the contentions raised in the written statement, there could be no challenge to the notification referred above and the entitlement of respondent for protection under the said notification. 4. A similar matter had come up before me for decision in C.R.P.No.621 of 2010 between the same landlord and different tenants where similar question was raised and this Court by order dated July 13, 2011 held that since disputed facts are involved the issue could not have been decided as a preliminary issue under Rule 2 of Order 14 of the Code. So holding the finding was set aside and issue regarding maintainability was directed to be decided in the suit. 5. It is true that there is some delay in petitioner approaching this Court. But I am told that the case has not been posted for trial in the list. Therefore, the delay alone need not defeat the claim made by petitioner. OP(C)No.2526/2011 3 6. Otherwise, facts are similar to the one in C.R.P.No.621 of 2010. In the present case also, petitioner has disputed the status of respondent as a Hindu Religious Endowment coming under the purview of the Act. It requires evidence to decide that issue. In that view of the matter I do not find reason to take a different view from the view taken in the order dated July 13, 2011 in C.R.P.No.621 of 2010. Issue regarding maintainability of the suit shall be decided in the course of trial along with other issues. Resultantly this Original Petition is allowed. The order dated October 12, 2010 in O.S.No.248 of 2009 of the court of learned Additional Munsiff, Kochi is set aside. It is directed that the issue regarding maintainability of the suit shall be decided along with the other issues. Learned Additional Munsiff shall expedite the proceeding and if pre-trial steps are over dispose of the same as early as possible. THOMAS P.JOSEPH, Judge. cks