IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 15TH OCTOBER 2009 / 23RD ASWINA 1931 WP(C).No. 26101 of 2009(O) ---------------------------------- IA.NO.3854/2007 IN OS.210/2007 of PRL.MUNSIFF COURT,NEDUMANGAD .................... PETITIONER(S): ------------------------ SHAMNATH A.RAHIM, AGED 40 YEARS, S/O.ABDUL RAHIM, DILSHAD MANZIL, KAZHAKKOOTTAM P.O THIRUVANANTHAPURAM. BY ADV. SMT.DAISY A.PHILIPOSE RESPONDENT(S): ------------------------ 1. SEENA, SREE SHAILAM, KUNDARA P.O. 2. SAINA, VARNAM HOUSE, KOPPAM, VITHURA, CHITTUVETTU MURI, THOLICODE P.O. 3. LAJI, VARNAM HOUSE, KOPPAM, VITHURA, CHITTUVETTU MURI, THOLICODE P.O. 4. SAJU, KALLOOR BUILDINGS, THONNAKKAL P.O., THIRUVANANTHAPURAM DISTRICT. 5. V.H.SANIL, VARNAM HOUSE, KOPPAM, VITHURA, CHITTUVETTU MURI, THOLICODE P.O. R1 TO R5 BY ADV. MR.J.JAYAKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.26101/2009 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE PLAINT IN OS. 210/2007 ON THE FILES OF THE MUNSIFF'S COURT, NEDUMANGAD. P2:- COPY OF THE SETTLEMENT DEED. 13191/92 DTD. 22.6.92. P3:- COPY OF THE SETTLEMENT DEED NO.2225/1991 DTD. 2.12.91. P4:- COPY OF THE SETTLEMENT DEED NO.21851/91 DTD. 2.12.99. P5:- COPY OF THE SETTLEMENT DEED NO.13191/92 DTD. 22.6.92. P6:- COPY OF THE SETTLEMENT DEED NO.2294/96 DTD. 2.12.91. P7:- COPY OF THE WRITTEN STATEMENT DT. 23.5.07 . P8:- COPY OF THE SALE DEED NO.1054/05 DTD. 18.6.05. P9:- COPY OF THE DEED NO.2746/07 DTD. 21.6.07. P10:- COPY OF THE FINAL DECREE IN OS. NO.885/1960, OF THE MUNSIFF'S COURT, THIRUVANANTHAPURAM DTD. 11.7.97. P11:- COPY OF THE DELIVERY REPORT IN OS. 885/1960, OF THE MUNSIFF'S COURT, THIRUVANANTHAPURAM DTD. 23.2.07. P12:- COPY OF THE JUDGMENT IN SA. NO.1246/1973. DTD. 19.10.77. P13:- COPY OF THE ORDER IN IA. NO.1567/07 IN OS. 210/07 DTD. 6.7.07. P14:- COPY OF THE ORDER IN WPC. 37255/07 DTD. 17.12.07. P15:- COPY OF THE IA. 3854/07 IN OS. NO.210/07. P16:- COPY OF THE ORDER IN IA. 3854/07 IN OS. 210/07. P17:- COPY OF THE RELEVANT EXTRACT OF RESURVEY NUMBER- WARI IN RESPECT OF SY. NO. 47 AND 48 OF THOLIKODE VILLAGE. P18:- COPY OF THE DOCUMENT NO.4126/1958. P19:- COPY OF THE ORDER IN IA. 2990/09 IN FAO. 202/09. TRUE COPY P.A. TO JUDGE tss S.S.SATHEESACHANDRAN, J. ----------------------------- W.P.(C).No.26101 OF 2009 -------------------------- Dated this the 15th day of October 2009 ------------------------------------- JUDGMENT Petitioner is the first defendant in O.S No.210 of 2007 on the file of Munsiff Court, Nedumangad. Suit is one for permanent prohibitory injunction, and the respondents are the plaintiffs. Suit claim was resisted by the defendants in which among other contentions, the maintainability of the suit was challenged as barred under Section 47 of the Code of Civil Procedure. Valuation of the suit and also sufficiency of the court fee paid was also impeached by the defendants in their written statement. The learned Munsiff, among other issues raised, cast issues as to whether the suit is maintainable as barred under Section 47 of the Code of Civil Procedure and also whether court fee paid is sufficient and adequate. Those two questions were considered preliminarily pursuant to an W.P.(C).No.26101 OF 2009 Page numbers application moved by the defendants canvassing a decision thereof before examination of other issues settled for adjudication. After hearing both sides, the court below passed Ext.P6 order by which the challenge raised against the maintainability of the suit as barred under section 47 of the Code of Civil Procedure was deferred for consideration later holding that it cannot be decided as a preliminary issue without taking evidence. Though the court has raised the question as to whether court fee paid is sufficient or not, that question was not considered. Propriety and correctness of Ext.P6 order is challenged in the writ petition invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 3. Though the respondents have been served, none of them turned up at the time of hearing. I heard the learned counsel for the petitioner. The learned counsel for the petitioner W.P.(C).No.26101 OF 2009 Page numbers submitted that in view of the previous decisions rendered in the suits between the defendants and the predecessors of the plaintiffs in respect of the very same subject matter the present suit is barred under Section 47 of the Code of Civil Procedure. I am not impressed by the submission made by the counsel. The question to be considered is whether the bar of suit raised by the defendants, as hit by Section 47 of the Code of Civil Procedure can be tried as a preliminary issue or not. An issue can be tried preliminarily postponing other issues, only if it can be decided as a pure question of law without taking evidence. Where evidence is required to be taken for a decision of an issue, it cannot be tried as a preliminary issue. In “Thiruvambadi Rubber Co. Ltd. v Damodharan Nair” (1984 KLT 586) it has been held, “the questions of mixed fact and law where evidence is necessarily to be recorded, need not be tried as a preliminary issue coming under this rule. It is, therefore, clear that it is only an W.P.(C).No.26101 OF 2009 Page numbers issue of law which goes to the root of the suit and capable of being decided without recording evidence that must be tried as preliminary issue in the first instance under Order 14 Rule 2”. Provision covered by Rule 2 Order 14 clearly spells out that a decision on an issue tried preliminarily without taking evidence, if decided in favour of the party raising such bar should render a disposal of the suit and that decision has to be treated as a judgment as captioned under the Rule. On the contentions raised by the defendants in the present case, it is needless to point out without taking of evidence, whether it be oral or documentary, the question whether the suit is barred under Section 47 of the Code of Civil Procedure cannot be determined. That being so, I find no impropriety or illegality in the order passed by the court below that the issue raised as to the maintainability of the suit cannot be decided preliminarily. It is noticed that the court below has also not considered the question of sufficiency W.P.(C).No.26101 OF 2009 Page numbers of the court fee though an issue is raised thereof, and also despite in the application filed by the petitioner, consideration of that question was also sought for. Needless to point out that question has to be considered as preliminary issue. Since the court has raised an issue as to the sufficiency of the court fee, necessarily it has to enter a finding thereof or delete that issue if it is not emerging for consideration before proceeding with the trial of the case. Having regard to the submissions made and taking note of the facts and circumstances presented, I direct the court below to give the suit top priority in hearing and dispose it as expeditiously as possible. Writ petition is disposed as indicated above. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A TO JUDGE vdv