IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 21ST MAY 2008 / 31ST VAISAKHA 1930 WP(C).No. 14923 of 2008(B) -------------------------- OS.352/2000 of MUNSIFF COURT, VAIKOM .................... PETITIONER: ------------ BABU THOMAS CHANDY, KUDIYATHUKUZHUPPIL HOUSE, ERAVIMANGALAM KARA, MUTTUCHITA POST MANJOOR VILLAGE, KOTTAYAM DISTRICT. BY ADV. SRI.P.KURUVILLA JACOB RESPONDENTS: ------------- 1. STATE OF KERALA, REP. BY DISTRICT COLLECTOR ,KOTTAYAM 2. THE CHIEF ENGINEER, PROJECT -11, IRRIGAT ION DEPARTMENT, THIRUVANANTHAPURAM. 3. THE DIVISIONAL ENGINEER, M.V.I.P., KURUPPANTHARA KADAVU, KURUPPANTHARA POST, KOTTAYAM DISTRICT. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21/05/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ------------------------------- W.P.(C) No.14923 of 2008 ------------------------------- Dated this the 21st May, 2008. J U D G M E N T Petitioner is the plaintiff in O.S.No.352/2000, on the file of the Munsiff Court, Vaikom. This petition is filed under Article 227 of the Constitution of India to quash Ext.P9 order contending that trial court should not have heard I.A.No.307/2005 before disposing of I.A.No.1095/07, as well as other applications filed under Order VI Rule 17 of Code of Civil Procedure. 2. The argument of the learned counsel appearing for the petitioner is that Ext.P5 order passed by this Court in W.P.(C) No.21429/2005, dated 19.7.2005, does not contain any direction to the trial court not to dispose of any other applications pending or to be filed in the suit, before disposing of I.A.No.307/2005, and Ext.P9 order was passed under a mistaken impression that such a direction was given by this Court. Ext.P5 order was passed in a petition filed under Article 227 of the Constitution of India to direct the trial court to appoint a Commissioner before taking the suit for trial. There was also W.P.(C) No.14923/2008 2 a prayer to quash Ext.P7 order therein, which was an order passed in Ext.P4 application filed therein under Order VI Rule 17 of the Code of Civil Procedure. This Court found that in the suit, defendants have raised a contention that the suit is not maintainable, and I.A.No.307/2005 was filed to decide the question of maintainability of the suit. This Court also found that before considering the question of appointment of a Commission, trial court shall decide the maintainability of the suit. Under Ext.P5 order, trial court was directed accordingly. Even though this Court did not find that Ext.P7 order was either illegal, irregular or was passed without jurisdiction, or without properly exercising the jurisdiction vested in it, this Court quashed Ext.P7 order for the sole reason that question of maintainability of the suit is to be decided first before considering the other applications. It is in the light of the said view taken by this Court that in Ext.P9 order, trial court took the view that this Court has directed to dispose of I.A.No.307/2005 before deciding any other application. I do not think, that finding of the trial court warrants any interference, in view of Ext.P5 order. 3. The argument of the learned counsel for the petitioner is that fate of I.A.No.1095/07 is material in deciding the W.P.(C) No.14923/2008 3 maintainability of the suit, and before deciding that application, if I.A.No.307/2005 is disposed of, it would affect the very maintainability of the suit. If the court, on hearing the parties, find that the maintainability of the suit depends on the order to be passed in I.A.No.1095/2007, I make it clear that trial court is at liberty to dispose of I.A.No.1095/2007 also along with I.A.No.307/2005. But it is further made clear that if I.A.No.1095/2007 has no effect on the question of maintainability to be decided in I.A.No.307/2005, trial court is competent to dispose of I.A.No.307/2005 before passing orders on any other applications. Petition is disposed of accordingly. M.SASIDHARAN NAMBIAR, JUDGE nj.