IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 28TH JANUARY 2010 / 8TH MAGHA 1931 WP(C).No. 37603 of 2009(O) -------------------------- AGAINST THE ORDER DATED 22/07/2009 IN IA.2278/09 IN OS.311/2008 of II ADDL.M.C.,THRISSUR .................... PETITIONER(S): FRANCIS V.ALUKKA, S/O.ALUKKA VARKEY, EAST FORT, CHEMBUKKAVU, THRISSUR DISTRICT. BY ADV. SRI.M.B.PRAJITH RESPONDENT(S): 1. C.A.MANOJ, AGED 45 YEARS, S/O.CHIRUKANDATH ASHOKAN, CHIRUKANDATH HOUSE, CHITTILAPILLY, THRISSUR. 2. JAWAHAR LAL, AGED 45 YEARS, S/O.KADAVIL JAYATHILAKAN, KADAVIL HOUSE, CHITTILAPILLY, THRISSUR. 3. T.V.SUNDARI AMBAL, W/O.LATE BALAKRISHNA AYYAR, CHANDRAPILLY MADOM, SANSKRIT COLLEGE ROAD, P.O.THRIPUNNITHARA, ERNAKULAM. 4. C.B.VENUGOPALAN, S/O.LATE BALAKRISHNA AYYAR, CHANDRAPILLY MADOM, SANSKRIT COLLEGE ROAD, P.O.THRIPUNNITHARA, ERNAKULAM. 5. C.B.RADHAKRISHNAN, S/O.LATE BALAKRISHNA AYYAR, CHANDRAPILLY MADOM, SANSKRIT COLLEGE ROAD, P.O.THRIPUNNITHARA, ERNAKULAM. W.P.C.No.37603/2009 2 6. C.B.REGHURAM, S/O.LATE BALAKRISHNA AYYAR, CHANDRAPILLY MADOM, SANSKRIT COLLEGE ROAD, P.O.THRIPUNNITHARA, ERNAKULAM. 7. C.B.RAMAKRISHNAN, S/O.LATE BALAKRISHNA AYYAR, CHANDRAPILLY MADOM, SANSKRIT COLLEGE ROAD, P.O.THRIPUNNITHARA, ERNAKULAM. 8. C.B.CHANDRAKALA, D/O.LATE BALAKRISHNA AYYAR, CHANDRAPILLY MADOM, SANSKRIT COLLEGE ROAD, P.O.THRIPUNNITHARA, ERNAKULAM. 9. C.B.VASUDEVAN, S/O.LATE BALAKRISHNA AYYAR, CHANDRAPILLY MADOM, SANSKRIT COLLEGE ROAD, P.O.THRIPUNNITHARA, ERNAKULAM. 10. A.K.SANKUNNY, MANAGING TRUSTEE, AKANDA CHAITHANYALAYAM, H.O.AT ATHMAPRABHALAYAM TRUST, P.O.PATHIYARKULANGARA, URAKAM DESOM, ANNAKKARA, CHAVAKKADU TALUK,RESIDING AT ANANDAMANDIRAM, P.O.PATHIYARKULANGARA, URAKAM DESOM, ANNAKKARA, CHAVAKADU TALUK, THRISSUR. 11. THE SUB REGISTRAR, MUNDOOR SRO, THRISSUR. ADV. SRI.R.RAMADAS FOR R3TO9 SRI.P.A.CHANDRAN FOR R1 & 2 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = = W.P.(c).No.37603 of 2009 = = = = = = = = = = = = = = Dated this the 28 th day of January, 2010 JUDGMENT The 1st defendant in O.S.No.311 of 2008 on the file of the II Additional Munsiff's Court, Thrissur is the writ petitioner herein. The said suit filed by respondents 1 and 2 herein is, inter alia, for a declaration that the sale deeds mentioned in the plaint are null and void. According to the plaintiffs, the 1st defendant has purchased a property from the defendants 2 to 9 belonging to a trust by name Sakthi Enterprises Trust, that the property belonged to Akanda Chaithanyalayam Trust and the Sakthi Enterprises Trust is a trust which belongs to Akanda Chaithanyalayam Trust. The 1st defendant filed Ext.P2 written statement. Along with Ext.P2 written statement he also filed Ext.P3 application as I.A.No.2278 of 2009 to decide as a preliminary issue his contention that the suit is barred by limitation. As per Ext.P4 order dated 22.07.2009, the learned Munsiff closed the above said application holding that the issue of limitation will be considered in the suit. It is the said order which is assailed in this writ petition. W.P.(c)No.37603 of 2009 2 2. I heard both sides. Ext.P4 order in so far as it does not give any reason as to why consideration of the question of limitation is relegated to the trial of the suit, is unsustainable. But at the same time if the question of limitation can be decided only after trial nothing prevents it from postponing the case on the question of limitation to the date after the trial of the suit. The court below should have given reasons as to why the said issue could not be decided as a preliminary issue. According to the petitioner, from the plaint averment itself the suit could be dismissed as barred by limitation and the plaint could be rejected under Order 7 Rule 11 C.P.C. But the court below has not given any reason as to why the question of limitation cannot be decided as a preliminary issue. Ext.P4 order is accordingly set aside and the matter is remitted to the court below to consider whether the question of limitation could be decided as a preliminary issue and pass a speaking order therein. This Writ Petition is disposed of as above. Dated this the 28 th day of January, 2010. V. RAMKUMAR, JUDGE sj