IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 28TH NOVEMBER 2007 / 7TH AGRAHAYANA 1929 WP(C).No. 35095 of 2007(C) -------------------------- OS.417/2007 of PRL.M.C.,ERNAKULAM .................... PETITIONER/ADDL.11TH DEFENDANT: ------------ VIPIN SIMON, AGED 36, S/O.LATE P.M.SIMON, PALAKAPPILLI, KOPARAMBU LANE, KADAVANTHRA, KOCHI-20. BY ADV. SRI.JOSEPH GEORGE RESPONDENTS/PLAINTIFFS& DEFENDANTS 1 TO 10: ------------- 1. THRESSIAMMA, W/O.LATE CHACKO @ JACOB, AGED 76, PALAKAPPALLY HOUSE, PERUMANOOR DESOM, ERNAKULAM VILLAGE, KANAYANNUR TALUK. 2. AMMINI, D/O.LATE CHACKO @ JACOB, AGED 53, PALAKAPPALLY HOUSE, PERUMANOOR DESOM, ERNAKULAM VILLAGE, KANAYANNUR TALUK. 3. MARIAKUTTY, W/O.LATE MATHEW, AGED ABOUT 80, PALAKAPPILLI, KOCHANATTU PARAMBIL, PERUMANOOR P.O., KOCHI-15. 4. KURIEN, S/O.MATHEW, AGED ABOUT 53, PALAKAPPILLI, KOCHANATTU PARAMBIL, PERUMANOOR P.O., KOCHI-15. 5. AMMINI, D/O.MATHEW, AGED ABOUT 64, PALAKAPPILLI, KOCHANATTU PARAMBIL, PERUMANOOR P.O., KOCHI-15. 6. MERCY, D/O.MATHEW, AGED ABOUT 59, PALAKAPPILLI, KOCHANATTU PARAMBIL, PERUMANOOR P.O., KOCHI-15. 7. BABY, D/O.LATE MATHEW, AGED ABOUT 56, PALAKAPPILLI, KOCHANATTU PARAMBIL, PERUMANOOR P.O., KOCHI-15. 8. KOCHUTHRESSIA, D/O.LATE MATHEW, AGED ABOUT 40, PALAKAPPILLI, KOCHANATTU PARAMBIL, PERUMANOOR P.O., KOCHI-15. 9. JOSEPH @ MATHACHAN, S/O.LATE SIMON, AGED ABOUT 30, PALAKAPPILLI, KOPPARAMBU LANE, KADAVANTHARA, NEAR ST.JOSEPH U.P.SCHOOL, KOCHI-20. 10. GIPIN SIMON, S/O.LATE SIMON, AGED 27, PALAKAPPILLI, KOPPARAMBU LANE, KADAVANTHARA, NEAR ST.JOSEPH U.P.SCHOOL, KOCHI-20. 11. NIMIL SIMON, S/O.LATE SIMON, AGED 21, PALAKAPPILLI, KOPPARAMBU LANE, KADAVANTHARA, NEAR ST.JOSEPH U.P.SCHOOL, KOCHI-20. 12. JOSEPH SIMON, S/O.LATE SIMON, AGED 19, PALAKAPPILLI, KOPPARAMBU LANE, KADAVANTHARA, NEAR ST.JOSEPH U.P.SCHOOL, KOCHI-20. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28/11/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. ------------------------------------------ W.P.(C)NO.35095 OF 2007 - C ------------------------------------------ Dated this the 28th day of November, 2007. JUDGMENT This writ petition is preferred against the order of the Principal Munsiff Court, Ernakulam on additional issues 1 to 3 in O.S.No.417/2007. Additional issue No.1 is with respect to the maintainability of the suit. Additional issue No.3 is with respect to the question of application of resjudicata and additional issue No.2 is with respect to the issue on the question of limitation. Let me first consider about the question of maintainability. The present writ petitioner is claiming kudikidappu right over the property. He had not applied for purchase of kudikidappu and, according to him, he is in possession of 7.5 cents of land and therefore, the plaintiffs are not entitled to file a suit for injunction in the light of the provisions of the Land Reforms Act. This fact has been precisely considered by this Court in the decision reported in Paul Alias Varkey v. Narayanan (1974 KLT 29). This Court held that when a person is entitled to get certain extent of land, the owner of the land can certainly move a case for injunction and it is not barred and a reference under Section 125(3) will not apply. WPC.NO.35095/2007 . 2 The learned Munsiff had correctly decided that question and he has also referred to the other decision of this Court reported in Thomas v. Kunju Lurumba (1995 (1) KLT SN 9). The next question to be considered is with respect to resjudicata. It is fundamental that, in order to apply the principles of resjudicata, the matter should have been heard and finally decided. When a suit is dismissed for default, the question of adjudication of any right does not arise at all and therefore, the plea of resjudicata also cannot be sustained. Lastly, the two questions are one regarding limitation and the other regarding bar under Order 9 Rule 9. The remedy is only to file a petition to restore the suit under Order 9 Rule 9. Order 9 Rule 9 specifically bars filing of a suit on the very same cause of action. It has been stated that the prayer for injunction is a continuous cause of action and there is a clear averment in the plaint to the effect that the new cause of action had arisen on 23.2.2007. Therefore, the bar under Order 9 Rule 9 cannot apply. Lastly regarding the plea of limitation. It has to be stated that in the suit for injunction, there is no limitation and if a question of adverse possession and limitation arisen, it is not a question that has to be considered as a preliminary issue. Therefore, one cannot find fault with that finding also. If a WPC.NO.35095/2007 . 3 plea of adverse possession on limitation can be raised by the defendants and if it is permissible by law, they are at liberty to do so and the court has to consider it in accordance with law. I do not find any illegality or irregularity in the finding entered by the learned Munsiff, Ernakulam and therefore, the writ petition lacks merit and it is dismissed. M.N. KRISHNAN, JUDGE. cl WPC.NO.35095/2007 . 4