IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 10TH FEBRUARY 2010 / 21ST MAGHA 1931 WP(C).No. 21684 of 2006(F) -------------------------- OS.177/2003 of PRINCIPAL SUB COURT,ALAPPUZHA .................... PETITIONER(S): --------------- 1. VARGHESE VARGHESE, S/O.VARGHESE, AGED 56 YEARS, NALPATHANCHIL VEEDU, THALAVADI, KUTTANAD. 2. SANTHAMMA VARGHESE, W/O.VARHGESE VARGHESE, NALPATHANCHIL VEEDU, THALAVADI, KUTANAD. BY ADV. SRI.MOHAN JACOB GEORGE SMT.P.V.PARVATHI SMT.REENA THOMAS SRI.AJESH. M.R. SRI.TITUS THOMAS RESPONDENT(S): --------------- 1. PARIYATHETU CHITTY FUND, THIRUVALLA REP. BY ITS MANAGING PARTNER GRACY GEORGE (DEAD). 2. P.V.GEORGE, S/O.VARGHESE, PARIYATHETU PADINJATTOM MURI, KAVIYOOR, THIRUVALLA. ADV. SMT.ELIZABETH MATHAI IDICULLA FOR R1 SRI.C.RAGHAVAN FOR R1 SRI.MOHAN IDICULLA ABRAHAM FOR R1 SRI.MARTIN D.ALUMKARA FOR R1 SMT.PUSHPY B.MURICKEN FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC.21684/2004 APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PLAINT IN O.S.NO.177/2003 OF THE PRINCIPAL SUB JUDGE, ALAPPUZHA. EXT.P2: COPY OF THE WRITTEN STATEMENT FILED BY THE DEFENDANTS IN O.S.NO.177/2003. EXT.P3: COPY OF THE PLAINT IN O.S.NO.127/2001 OF THE PRINCIPAL SUB JUDGE, ALAPPUZHA. EXT.P4: COPY OF THE ISSUES FRAMED IN O.S.NO.127/01. EXT.P5: COPY OF THE MEMO DATED 19.11.2003 FILED BY THE COUNSEL FOR THE PLAINTIFFS IN O.S.NO.127/01. EXT.P6: COPY OF THE DECREE DATED 26.11.2003 PASSED IN O.S.NO.127/01. EXT.P7: COPY OF I.A.NO.1440/2004 IN O.S.NO.177/2003. EXT.P8: COPY OF THE OBJECTIONS FILED BY THE PLAINTIFF TO THE I.A.NO.1440/2004. EXT.P9: COPY OF THE ABSTRACT OF THE REGISTER OF FIRMS SHOWING THE NAME OF PARTNERS. EXT.P10: COPY OF THE AFFIDAVIT AND I.A.NO.1439/2004. EXT.P11: COPY OF THE LIST SHOWING THE NAMES OF THE PARTNERS OF THE FIRM SUBMITTED BY THE PLAINTIFF BEFORE THE COURT. EXT.P12: COPY OF THE ORDER DATED 28.6.2006 PASSED BY THE PRINCIPAL SUB JUDGE, ALAPPUZHA IN O.S.NO.177/03. /TRUE COPY/ P.A. TO JUDGE S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.21684 OF 2006 () ----------------------------------- Dated this the 10th day of February, 2010 J U D G M E N T Petitioners are the defendants in O.S.No.177 of 2003 on the file of the Principal Sub Court, Alappuzha. The above suit is one for money and the respondents are the plaintiffs. First plaintiff, a registered partnership firm conducting chitty business laid the suit alleging that the amount due in a chitty subscribed by the 1st defendant with the 2nd and 3rd defendants as sureties, after prizing such chitty, had not been discharged by them. The defendants resisted the suit claim, in which, among other contentions, they also challenged the maintainability of the suit contending that as on the date of accrual of the cause of auction, the 2nd plaintiff, who was shown as one of the partners of the firm was not a partner of the firm, but, he became a partner at a later stage, and that a suit previously instituted with the same cause of auction had been dismissed as not pressed by the 1st plaintiff firm. The WPC.21684/06 2 defendants also moved an application for considering the issue of maintainability preliminarily canvassed by them challenging the entertainability of the suit. However, that application was pressed into service only at a later stage after the suit came up in the special list for trial. Plaintiffs have filed objection to the application moved by the defendants for considering the maintainability of the issue before proceeding with the trial of other issues involved in the case. The learned Sub Judge, after hearing both sides, under the impugned order, found that the suit is maintainable negativing the challenges canvassed by the defendants. Propriety and correctness of that order is challenged in the writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 2. I heard the counsel on both sides. At the time of hearing, it is practically conceded that the issue of maintainability raised by the defendants in the suit can be gone into and determined only after examining the relevant materials and consideration of the disputed facts presented in WPC.21684/06 3 the case. Maintainability of the suit challenged by the defendants, it is evident, can be determined only on evidence as it is based on mixed questions of fact and law. When that be so, the larger question emerges for consideration is whether the challenge against the maintainability of the suit can be gone into as a preliminary issue. Order XIV Rule 2 of the Code of Civil Procedure clearly indicates that when an issue involves consideration of mixed question of fact and law, and evidence is necessary to decide it, cannot be tried as a preliminary issue. In Thiruvambadi Rubber Co. Ltd. v. Damodaran Nair (1984 KLT 586) analysing the ambit and scope of Order XIV Rule 2 of the CPC, this Court has held that it is only an issue of law which goes to the root of the suit and capable of being decided without recording evidence that must be tried as a preliminary issue in the first instance under Rule 2 of Order XIV of the CPC. So much so, I find that the question canvassed by the defendants challenging the maintainability of the suit has to be considered with other issues cast in the suit in the trial, and issue of maintainability cannot be considered preliminarily. So much so, without WPC.21684/06 4 going into the challenges raised as to the maintainability of the suit, I direct the learned Sub Judge to examine the issue of maintainability afresh untrammelled by any of the observations made in the impugned order along with other issues after taking evidence in the suit. The impugned order shall stand set aside. Subject to the above observations, the writ petition is closed. S.S.SATHEESACHANDRAN JUDGE prp