IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 13TH JULY 2009 / 22ND ASHADHA 1931 WP(C).No. 4707 of 2009(I) ------------------------------------ (IA.NO.52/2009 IN OS.79/2004 OF SUB COURT,KATTAPPANA) .................... PETITIONERS/PETITIONERS/DEFENDANTS 1 AND 2: --------------------------------------------------------------------------- 1. MALA ARAYA KSHETHRA SAMRAKSHANA SAMITHY, REG. NO. 1-364-2002, REPRESENTED BY ITS SECRETARY, K.K. BIJU, S/O. KARUNAKARAN, KUDIPLACKAL HOUSE, MOOZHIKKAL KARA, MALAPPARA VILLAGE, KORUTHODU POST, PEERMEDU TALUK, IDUKKI. 2. K.N. NARAYANAN, S/O. DAMODARAN, KARUPASSERIL, PRESIDENT, MALA ARAYA KSHETHRA SAMRAKSHANA SAMITHY, MOOZHIKKAL KARA, MALAPPARA VILLAGE, KORUTHODU POST, PEERMEDU TALUK, IDUKKI. BY MR.GOVIND K.BHARATHAN, SENIOR ADVOCATE, ADVS. MR.C.P.KUNHIKANNAN, MR .S.K.MADHU. RESPONDENTS/RESPONDENTS/PLAINTIFFS AND DEFENDANTS 3-7: --------------------------------------------------------------------------------------------------- 1. AKHILA THIRUVITHAMCORE MALA ARAYA MAHA SABHA, BRANCH NO. 25, MOOZHIKKAL, REPRESENTED BY ITS SECRETARY,K.K. DIVAKARAN, S/O. KUNJUKARUMPAN, KOCHUVEETIL HOUSE, MOOZHIKKAL KARA, MALAPPARA VILLAGE, KORUTHODU.P.O, PEERMADE TALUK. 2. MALA ARAYA MAHA SABHA, BRANCH NO.1, MOOZHIKAL, REPRESENTED BY ITS SECRETARY, K.K. KRISHNAN, S/O. RAGHAVAN, KODUNGAYIL HOUSE, MOOZHIKKAL KARA, MALAPPARA VILAGE, KORUTHODU.P.O, PEERMADE TALUK. W.P.(C). NO.4707/2009-I: 3. P.N. GOPALAN, S/O. NARAYANAN, PUTHENPARAMBIL HOUSE, PRESIDENT, MALA ARAYA MAHA SABHA, BRANCH NO.1, MOOZHIKKAL KARA, MLAPPARA VILLGE, KORUTHODU.P.O, PEERMADE TALUK. 4. AIKYA MALA ARAYA MAHA SABHA, REG. NO. K. 1423/2005 REPRESENTED BY ITS SECRETARY, K.G. GANGADHARAN, PERAKATHU HOUSE, MOOZHIKKAL KARA, MLAPPARA VILLAGE, PEERMADE TALUK. 5. DAMODARAN, S/O. KESAVAN, PAIPPATTU HOUSE, MOOZHIKKAL KARA, MLAPPARA VILLAGE, PEERMADE TALUK. 6. SHIBU, S/O. NARAYANAN, CHALAPPURATHU HOUSE, MOOZHIKKAL KARA, MLAPPARA VILLAGE, PEERMADE TALUK. 7. PUSHPANGATHAN, S/O. ACHUTHAN, KURUMBANACKAL HOUSE, MOOZHIKKAL KARA, MLAPPARA VILLAGE, PEERMADE TALUK. R1 BY ADV. MR.A.C.DEVASIA. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/07/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.4707/2009-I: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE PLAINT IN O.S. NO. 79/2004 OF THE SUB COURT, KATTAPPANA. EXT.P.2: COPY OF THE WRITTEN STATEMENT IN O.S.NO.79/2004 OF THE SUB COURT, KATTAPPANA. EXT.P.3: COPY OF THE JUDGMENT DTD. 31/08/08 IN W.P.(C).NO.24291/2008. EXT.P.4: COPY OF THE I.A. NO. 52/09 IN O.S. NO. 79/2004 OF THE SUB COURT, KATTAPPANA. EXT.P.4: COPY OF THE ORDER DTD. 17/01/2009 IN I.A. NOS. 52/2009 IN O.S. NO. 79/04. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. Prv. S.S.SATHEESACHANDRAN, J. ----------------------------- W.P.(C).No.4707 OF 2009 -------------------------- Dated this the 13th day of July 2009 ------------------------------------- JUDGMENT The writ petition is filed seeking the following reliefs. i) Call for the records leading to Ext.P5 order in I.A No.52/2009 in O.S No. 79/2004 of the Sub Court, Kattappana and to issue appropriate order or direction setting aside the same. ii) Issue appropriate order or direction directing the Learned Subordinate Judge, Kattappana, to allow the I.S 52/2009 in O.S.79/2004 of the Sub Court, Kattappana. iii)Grant the petitioners their costs of the above writ petition and pass such further orders which may be deemed fit and proper in the circumstances of the case. W.P.(C).No.4707 OF 2009 2 2. Petitioners are the defendants 1 and 2 in O.S No.79/2004 on the file of Sub Court, Kattappana. In the written statement, these defendants have raised a contention that the present suit is barred by Order 2 Rule 2 of Code of Civil Procedure in view of the dismissal of a previous suit filed by the plaintiffs. The petitioners after settling of the issues wanted the maintainability of the suit to be considered preliminarily, and for that purpose they moved an application. The learned Sub Judge after hearing both sides dismissed that application. The propriety and correctness of that order is challenged in the writ petition by the petitioners invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. W.P.(C).No.4707 OF 2009 3 3. I have heard the counsel on both sides. From the submissions made and facts and circumstances presented and with reference to the materials tendered by the writ petition, I do not find any impropriety or illegality in the order passed by the learned Sub Judge impugned in the writ petition. In fact the learned Sub Judge has not taken a decision on the issue raised , but only relegated it for consideration with other issues raised in the suit. It appears that a challenge, the suit is barred under Order 2 Rule 2 of Code of Civil Procedure was raised by these petitioners for the reason that a previous suit for injunction filed by the plaintiff after adjudication was dismissed. I do not want to express any opinion on the merit of that defence raised in the present suit, which is one for a relief of recovery of possession on the basis of title. However, it has to be pointed out that the identity of cause of W.P.(C).No.4707 OF 2009 4 action is the question to be considered whether the suit is barred in view of the dismissal of the previous suit. It is seen from the order of the learned Sub Judge that the suit is ripe for trial. I direct the learned Sub Judge to give the suit top priority in hearing and to dispose it as expeditiously as possible, but, after giving reasonable opportunity to both sides to establish their respective case. Writ petition is closed. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A TO JUDGE vdv