IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 27TH MARCH 2008 / 7TH CHAITHRA 1930 WP(C).No. 10315 of 2008(C) -------------------------- OS.182/2006 of ADDL.SUB COURT, ALAPPUZHA .................... PETITIONER: ------------ R.ANANTHAKUMAR, S/O. V.RAMACHANDRA REDDIAR RESIDING AT DHANUS, CURZON ROAD, CUTCHERRY WARD, KOLLAM-691013. BY ADV. SRI.V.CHITAMBARESH (SR.) SRI.T.C.SURESH MENON SRI.JIBU P THOMAS SRI.P.S.APPU RESPONDENTS: --------------- 1. S.M. VENKATANARAYANAN, RESIDING AT S.M.V.GARDENS ANDAMUKKAM WARD, KOLLAM. 2. V.RAMACHANDRA REDDIAR, S/O. VEERIAH REDDIAR RESIDING AT DHANUS, CURZON ROAD, CUTCHERRY WARD, KOLLAM-691013. 3. R.VEERESH KUMAR, S/O. RAMACHANDRA REDDIAR -DO- -DO- 4. R.DHANALEKSHMI AMMAL, W/O. RAMACHANDRA REDDIAR -DO- -DO- BY ADV. SRI. P.B.SURESH KUMAR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. -------------------------- W.P.(C). NO. 10315 OF 2008 --------------------- Dated this the 27th day of March, 2008 JUDGMENT This writ petition is filed with a prayer to set aside Ext.P5 order and the finding on Issue Nos. 1 and 2 in OS 182/06 on the file of the Additional Sub Judge, Alappuzha. 2. The two issues that were sought to be considered are (i) Is the suit maintainable ? (ii) Is the suit barred by limitation ? The learned Sub Judge has considered the issue regarding the limitation very elaborately and had ultimately came to the conclusion that it is mixed question of fact and law and therefore it requires evidence for consideration. So it cannot be decided as a preliminary issue under Order XIV Rule 2(2). So far as the question of maintainability is concerned, the court held that the suit is at present maintainable. 3. So far as the question of limitation is concerned, since the court below felt that it is a mixed question of fact and law for consideration, it has to be upheld for the reason that after the amendment of the CPC in the year 1976, the word 'shall' has been substituted with 'may' whereby granting discretionary power to the court, if it cannot decide the matter without evidence. The object of such an amendment is to the effect that several tier of litigations could be averted on preliminary points so as to WPC NO 10315/08 2 avoid unnecessary protraction and delay of the cases. It was with these objects the amendments had been done. There is force in the judgment of the court below that the question of limitation is a mixed question of fact and law. Therefore I do not want to interfere with the said finding. 4. So far as the maintainability is concerned, learned counsel for the petitioner has specifically drawn my attention to para 9 of the detailed affidavit filed by the party to consider it as a preliminary issue. In para 9 it is submitted that the plaintiff is not a signatory to the alleged agreement dated 28.7.03 or the alleged execution agreement dated 14.7.04 and therefore in view of the categorical provisions under Section 15 of the Specific Relief Act, plaintiff is not entitled to any decree for specific performance. It is true that this is a question of law for the reason that admittedly the plaintiff is not a signatory to the alleged agreement. But in the plaint the prayers are one for specific performance and the other in the alternative for recovery of the money. So even if the question of law regarding the entitlement to the specific performance is considered by the court one way or other, the second question still looms large for consideration regarding the alternative prayer. By finding of an issue regarding maintainability the court cannot dismiss the suit for the reason that the court has to consider about the second prayer, which requires evidence for consideration. Therefore one has to understand the intention of the legislature behind under Order XIV Rule 2(2) in such matters. WPC NO 10315/08 3 Legislature only intended that if it is a pure question of law, the matter can be disposed of by that court. Then there remains nothing and so unnecessary tier of litigation can be averted. But on deciding that question of law alone the suit does not terminate then it will result in different tiers of litigation which the legislature wanted to avoid. Therefore it need not be heard as a preliminary issue. 5. Therefore in view of these discussions, I find that this issue also can be considered by the court along with the other points since there is an alternative prayer. At this stage, I do not want to interfere with the decision of the court below. But I make it clear that I am nost expressing anything as on the merits or demerits of the case on the question of maintainability in view of Sec.15 of the Specific Relief Act. Let the trial be deferred till 7.4.08. The writ petition is disposed of accordingly. M.N.KRISHNAN, JUDGE vps WPC NO 10315/08 4 WPC NO 10315/08 5