IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 16TH JUNE 2010 / 26TH JYAISTHA 1932 WP(C).NO. 29391 OF 2009(O) ----------------------------------------- I.A. NO.6786 OF 2009 IN OS.701/2008 OF PRINCIPAL SUB COURT,ERNAKULAM .................... PETITIONER(S): ---------------------- SACRED HEART PROVINCIAL HOUSE, RAJAGIRI, KALAMASSERY, (ALSO KNOWN AS RAJAGIRI PROVINCIAL HOUSE, REP.BY THE PROVINCIAL FR.ANTONY KARIYIL). BY ADV. SRI.KURIAN GEORGE KANNANTHANAM, SENIOR ADVOCATE SRI.ZAKEER HUSSAIN SRI.TONY GEORGE KANNANTHANAM RESPONDENT(S): ------------------------ ELEY @ MATHAMMA, REPRESENTED BY THE POWER OF ATTORNEY HOLDER BEENA, T-3 HEALTH LAB, PDP DAIRY FARM BUS STOP, RAJENDRA NAGAR, HYDERABAD-500 030. ADV. SRI.P.CHANDRASEKHAR FOR R1 SRI.G.RAJAGOPAL FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX --------------- PETITIONER'S EXHIBITS: ---------------------------------- EXHIBIT P1 COPY OF AFFIDAVIT WITH PETITION DATED 6.3.2008 IN I.A. NO.1843 OF 2008 OF THE SUB COURT, ERNAKULAM. EXHIBIT P2 COPY OF AFFIDAVIT DATED 30.7.2008 FILED IN O.S. NO.701 OF 2008 BEFORE THE SUB COURT, ERNAKULAM. EXHIBIT P3 COPY OF AFFIDAVIT DATED 24.9.2009 OF DO. EXHIBIT P4 COPY OF ORDER DATED 8.10.2009 IN I.A. NO.6786 OF 2009 IN O.S. NO.701 OF 2009 OF DO. RESPONDENT'S EXHIBITS: ----------------------------------- NIL TRUE COPY THOMAS P.JOSEPH, J. ==================================== W.P(C) No.29391 of 2009 ==================================== Dated this the 16th day of June, 2010 J U D G M E N T This Writ Petition is in challenge of order dated 08.10.2009 on I.A. No.6786 of 2009 in O.S. No.701 of 2009 of the court of learned Additional Sub Judge, Ernakulam. Suit was for fixation of boundary, recovery of possession and prohibitory injunction, initially filed in the court of learned Munsiff. Petitioner appeared in the court of learned Munsiff and filed written statement. In the course of proceeding the Advocate Commissioner along with a Taluk Surveyor inspected the property and reported as if disputed property is not in possession of petitioner. I am told, there was a subsequent application to appoint a Commissioner, that application was allowed, Commissioner submitted report and plan which indicated that property referred to therein was in the possession of petitioner. Thereon petitioner filed objection to the report and plan and an application to set aside the same. In the meantime respondent/plaintiff filed application to amend the plaint to incorporate a prayer for recovery of possession of the property which the second report of the Advocate Commissioner revealed W.P(C) No.29391 of 2009 -: 2 :- was in the possession of petitioner. On that application being allowed it was found that valuation stated crossed the pecuniary limit of jurisdiction of the learned Munsiff and thereon as per order dated 29.05.2006 learned Munsiff returned the plaint to be presented in the proper court (Sub Court, Ernakulam) and parties were directed to appear in the proper court on 19.06.2006. Petitioner appeared in the court of learned Sub Judge, Ernakulam on 19.06.2006 but there was no appearance for respondent/plaintiff. Enquiry revealed that respondent had not re-presented the plaint in the Sub Court, Ernakulam within the time provided by the learned Munsiff. Two years thereafter petitioner got notice on I.A. No.1843 of 2008 from the court of learned Sub Judge, Ernakulam which was for condonation of delay of 597 days in re-presenting the plaint in the said court. That application was resisted by petitioner. Thereon that application was withdrawn by the respondent. On 06.10.2008 learned Sub Judge ordered summons in the suit to the petitioner and to call for records of the case from the court of learned Munsiff. Contention of petitioner is that since the plaint was not re-presented in the proper court within time specified institution of the suit in the proper court cannot be taken as in continuation of the suit already W.P(C) No.29391 of 2009 -: 3 :- instituted in the Munsiff's court and hence whatever evidence was collected by the former court or written statement filed in that court cannot be taken into account. According to the petitioner, it is entitled to file fresh written statement in the proper court as if it was a fresh suit instituted in that court and raising whatever contentions that are available to it including limitation for the suit. While so that I.A.No.6786 of 2009 was filed praying that issue regarding maintainability of the suit be heard and disposed of. That application was dismissed by the learned Sub Judge vide, Ext.P4 order stating that question of maintainability of the suit is urged on the ground of limitation for suit (as if it is instituted in the Sub Court) and that petitioner has not raised any contention regarding bar of limitation. In the absence of such a contention issue regarding bar of limitation was not framed. Accordingly application was dismissed. Learned Senior Advocate for the petitioner reiterates the contention that the suit filed in the Sub Court, Ernakulam must be treated as a fresh suit and hence notwithstanding that petitioner has filed written statement in the former court it is entitled to file fresh written statement in the Sub Court. Learned counsel for respondent contends that even if it is assumed that re-presentation of the plaint in the Sub Court W.P(C) No.29391 of 2009 -: 4 :- amounted to institution of the suit afresh as contended by petitioner, it is not as if no opportunity was given to petitioner to file written statement. Copy of proceeding sheet of learned Sub Judge shows that opportunity was given to the petitioner to file written statement which was not availed, instead petitioner rest- contended with the written statement already filed in the Munsiff's court. As such there is no grievance for the petitioner. 2. It is true that order for return of plaint was issued by the learned Munsiff on 29.05.2006 fixing 19.06.2006 as the date for appearance of parties in the Sub Court. But respondent did not appear in that court and re-presented the plaint within that time. But if cause of action as pleaded in the plaint was within the period of limitation as on the day plaint was presented in the proper court, it must be taken that suit is within the period of limitation even if it is treated that presentation of the plaint amounted to institution of a fresh suit. 3. So far as contention of learned Senior Advocate that learned Sub Judge ought not have called for records from the Munsiff's court concerned, reliance is placed on Order VI Rule 10 of the Code of Civil Procedure (for short, “the Code”). That provision deals with return of plaint. When plaint is returned for W.P(C) No.29391 of 2009 -: 5 :- re-presentation in the proper court only the plaint can be returned. The court before which the plaint is re-presented has to call for other records from the former court. There is nothing illegal in the learned Sub Judge calling for the records of the case from the court of learned Munsiff. 4. So far as the contention that petitioner is deprived of opportunity to raise contention regarding maintainability of the suit is concerned it is seen from the B diary of the court of learned Sub Judge that on 6.10.2008 summons was ordered to the petitioner and the case was posted on 17.11.2008. On that day petitioner prayed for time to file written statement. Petitioner was granted time and case was posted on 08.01.2009. On 08.01.2009 it was recorded that petitioner has filed written statement in the Munsiff's court as the case was pending there. Then the case was posted on 06.03.2009 for verification. On 06.03.2009 it was reported that written statement is filed and the case was posted on 01.06.2009 for further steps. It is certain that petitioner was satisfied with the written statement already filed in the Munsiff's court which had been called for to the court of learned Sub Judge and which was on record. If that be so there is no merit in the complaint that petitioner did not get opportunity to file written W.P(C) No.29391 of 2009 -: 6 :- statement in the court of learned Sub Judge. 5. As the plaint was not re-presented within the time permitted it must be taken as instituted in that court on the date of presentation of the plaint subject to the law of limitation. But I make it clear in the facts and circumstances that it will be open to the petitioner to seek amendment of its written statement to incorporate whatever defence that are available to it as provided under law. Learned Sub Judge has to frame additional issues based on the contentions raised in the written statement by amendment. 6. Then the question is whether evidence which was collected when the case was pending in the court of learned Munsiff by way of report and plan of Advocate Commissioner and Surveyor can be made use of in the suit pending in the court of learned Sub Judge. I stated that records have been called for to that court. That is a matter which learned Sub Judger has to decide at the appropriate stage. Even if it is assumed that the report and plan were obtained in another case, it can be admitted in evidence, the only requirement being that respondent will be obliged to examine the Advocate Commissioner and Surveyor in proof of the report and plan notwithstanding that the said report W.P(C) No.29391 of 2009 -: 7 :- and plan were obtained with notice to the petitioner. 7. It is submitted by counsel that application to set aside the second report and plan submitted by the Advocate Commissioner is pending in the court of learned Sub Judge. That application, I make it clear will take its course. Resultantly, the Writ Petition is dismissed. But I make it clear that it will be open to the petitioner to seek amendment of its written statement to incorporate whatever defences that are available to it as provided under law. Petitioner may file an application for amendment of written statement within one month from this day. If any such application is filed learned Sub Judge shall decide that application on its merit. Question of framing additional issue if any would follow the result of that application. THOMAS P. JOSEPH, JUDGE. vsv