IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 30TH JUNE 2008 / 9TH ASHADHA 1930 WP(C).No. 19606 of 2008(H) -------------------------- OS.2811/2006 of PRL.MUNSIFF COURT,THRISSUR .................... PETITIONER: ------------ GANGADARAN, S/O. CARPENTER KOCHUKUTTAN, AGED 67 YEARS, ASSARY HOUSE, CHETUPUZHA DESOM, PULLAZHY VILLAGE, THRISSUR DISTRICT. BY ADV. SRI.SHOBY K.FRANCIS RESPONDENTS: ------------- 1. SUBRAMANIAN, S/O. MARAVETTIKKAL VELAYUDHAN, MARAVETTIKKAL HOUSE, CHETUPUZHA DESOM, PULLAZHY VILLAGE, THRISSUR DISTRICT. 2. K.K.JAYASURYAN, ADVOCATE, THRISSUR DISTRICT COURT BAR ASSOCIATION, COURT COMPLEX, AYYANTHOLE, THRISSUR-03. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ------------------------------- W.P.(C) No.19606 of 2008 ------------------------------- Dated this the 30th June, 2008. J U D G M E N T Petitioner is the plaintiff in O.S.No.2811 of 2006, on the file of the Munsiff Court, Thrissur. This petition is filed under Article 227 of the Constitution of India challenging Exts.P3 and P6 orders. Ext.P6 is a finding of the learned Munsiff on the question of maintainability of the suit under sub-rule 2 of Order XLV of Code of Civil Procedure. Learned Munsiff found that suit is not maintainable as barred by resjudicata. Consequently, the suit was dismissed. Hence, remedy of the petitioner is to file an appeal challenging the dismissal of the suit whereunder finding on the issue could be challenged. Petitioner is not entitled to challenge the finding in that issue by filing a petition under Article 227 of the Constitution of India, when the suit stands dismissed by the finding on that issue. Though Ext.P3 judgment is challenged, petitioner is the plaintiff in O.S.191 OF 1985. Petitioner though contends that he did W.P.(C) No.19606/2008 2 not instruct the counsel to file the suit, the judgment cannot be challenged by filing a petition under Article 227 of the Constitution of India. His remedy is to file an appeal. With liberty to file an appeal against the judgment, this writ petition is dismissed. M.SASIDHARAN NAMBIAR, JUDGE nj.