IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 8TH SEPTEMBER 2009 / 17TH BHADRA 1931 WP(C).No. 34924 of 2008(G) -------------------------- OS.50/2007 of PRL.SUB COURT,IRINJALAKUDA .................... PETITIONER(S): ------------------------- C.S.SADASIVAN, AGED 49 YEARS, S/O.LATE SRI.SREENIVASAYYER, CHARTERED ACCOUNTANT, THEKKEDATHU MADATHIL, CHALAKKUDY DESOM, KIZHAKKE CHALAKKUDY VILLAGE, MUKUNDAPURAM TALUK. BY ADV. MR.KRISHNA PRASAD. S. RESPONDENT(S): --------------------------- 1. DHRAMARAJAN, AGED 72 YEARS, S/O.LATE SRI.SREENIVASAYYER, THEKKEDATHU MADATHIL, CHALAKKUDY DESOM, KIZHAKKE CHALAKKUDY VILLAGE, MUKUNDAPURAM TALUK. 2. BHAGYA LAKSHMI, AGED 67 YEARS, D/O.LATE SRI.SREENIVASAYYER, THEKKEDATHU MADATHIL, CHALAKKUDY DESOM, KIZHAKKE CHALAKKUDY VILLAGE, MUKUNDAPURAM TALUK. 3. SHYAMALA, AGED 64 YEARS, W/O.DR.VISWANATHAN "ANURAG" SHORNUR ROAD,THRISSUR. 4. GIRIJA, AGED 62 YEARS, W/O.GANAPATHY, "LAKSHMI PRIYA" NEAR THAIKKATTU SASTHA KSHETHRAM, THIRUVANANTHAPURAM. 5. SULOCHANA, AGED 59 YEARS, W/O.G.RAMAN, NO.VIII SHANTHI NAGAR, KALAMASSERY, ERNAKULAM DISTRICT. 6. VALSALA, AGED 57 YEARS, PAREKKAT MADAM, THODUPUZHA. R1 BY ADVS.MR.P.N.RAMAKRISHNAN NAIR, MR.P.VISWANATHAN. R2 BY ADV. MR.E.NARAYANAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.34924/2008 G APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE PLAINT IN O.S.NO.50 OF 2007. P2: COPY OF THE RECEIPT ISSUED BY THE PLAINTIFF/1ST RESPONDENT IN FAVOUR OF HIS FATHERDTD. 23/05/1990. P3: COPY OF THE ORDER DTD. 3/10/2006 IN WPC.NO.24 OF 2004. P4: COPY OF THE ORDER DTD. 25/01/2007. P5: COPY OF THEI.A.NO.3392 OF 2007 DTD. 23/10/2007. P6: COPY OF THE I.A.NO.95 OF 2008 DTD. 19/09/2008. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.34924 of 2008 - G --------------------------------- Dated this the 8th day of September, 2009 JUDGMENT Writ petition is filed seeking the following reliefs: “i) To issue a writ, any appropriate order or direction directing the Sub Court, Irinjalakkuda to hear Exhibit P5 and Exhibit P6 and pass orders in the interest of justice. ii) To issue a writ, any appropriate order or directions directing the Sub Court, Irinjalakkuda to remove O.S.No.50 of 2007 from the special list till orders are passed in Exhibit P5 and Exhibit P6”. 2. Petitioner is the first defendant in O.S.No.50 of 2007 on the file of the Sub Court, Irinjalakkuda. The above suit is one for partition. In the written statement the petitioner/first defendant among other contentions had challenged maintainability of the suit as barred by res judicata. Plaintiff/first respondent had earlier preferred another suit for partition, but, later, it was dismissed as not pressed, was the basis to raise the bar of res judicata. Petitioner had also moved an application before the court for considering the issue of res judicata as a preliminary issue. The writ petition has been filed to issue directions/orders to the court W.P.(C).No.34924 of 2008 - G 2 below to consider Ext.P5 application moved by the petitioner for considering the question of res judicata as a preliminary issue. 3. I heard the learned counsel on both sides. 4. It is submitted that evidence in the case has already commenced, but, in view of the stay order passed in the present writ petition the trial could not be completed. Examination of the plaintiff was over as on 24.9.2008. Whatever be the merit of Ext.P5 application moved by the petitioner/first defendant, needless to point out that the issue can be tried as a preliminary issue only if it satisfies the mandate covered under Order XIV Rule 2 of CPC. On the facts and circumstances presented and the submissions made, I find the request by the first defendant is prima facie not entertainable. Since the evidence has already commenced, there is no need to consider any issue preliminary at this stage and what is warranted is an expeditious disposal of the suit determining all issues on evidence. I direct the court below to expedite the trial and dispose the case as expeditiously as possible. Writ petition is closed. S.S.SATHEESACHANDRAN, JUDGE. bkn/-