IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 28TH AUGUST 2008 / 6TH BHADRA 1930 CRP.No. 443 of 2008() --------------------------------- (AGAINST THE ORDER DTD. 31/03/2008 IN I.A.NO.3370/2007 IN O.S.NO.60/2005 OF PRINCIPAL MUNSIFF II, KOZHIKODE) PETITIONER/ 2ND PETITIONER: -------------------------------------------------- P.K.RAMADASAN, AGED 77 YEARS, S/O.NARAYANAN NAIR, KARTHIKA, E F 7/114, CHEVARAMBALAM, KOZHIKODE. BY ADV. SRI.T.R.RAVI RESPONDENT: RESPONDENT: ---------------------------------------------- MATHRUBHUMI PRINTING & PUBLISHING CO.LTD REPRESENTED BY SECRETARY, M.V.GOPALAKRISHNAN, K.P.KESAVAMENON ROAD, KOZHIKODE. BY ADV. SRI.U.K.RAMAKRISHNAN (SR.) SRI.U.K.DEVIDAS SRI.P.J.ANILKUMAR SMT.P.VIJAYAMMA SMT.UMA GOPINATH THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 28/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M. SASIDHARAN NAMBIAR, J. ------------------------------------------ C.R.P.NO. 443 OF 2008 ------------------------------------------ Dated this the 28th day of August, 2008 O R D E R Petitioner is the second defendant in O.S.60 of 2005 on the file of Munsiff Court-II, Kozhikode. Respondent is the plaintiff. Suit was filed for realisation of the amount due under a bond executed by the first defendant at the time of getting employment in the respondent establishment. Petitioner, the father of the first defendant, was a surety and also an executant of the bond. I.A.3370 of 2007 was filed for hearing issue No.1, the question whether the suit is barred by time, as a preliminary issue. Learned Munsiff, finding that the issue can be answered only after recording evidence, dismissed the petition. This revision petition is filed under Section 115 of Code of Civil Procedure. 2. Learned counsel appearing for petitioner and learned senior counsel appearing for respondent were heard. 3. Sub rule (ii) of Rule 2 of Order XIV of Code of Civil Procedure provides that where issues both of law and fact arise CRP443/08 2 in the suit and Court is of opinion that the case or any part thereof may be disposed of on an issue on law only, it may try that issue first, if that issue relates to (a) jurisdiction of the Court, or (b) a bar to the suit created by any law for the time being in force and for that purpose, if it thinks fit, postpone the settlement of other issues only after the said issue has been determined. The suit is based on the bond date executed by petitioner and his son on 21.5.1999. 4. Case of the defendants is that the right to realise the amount accrued to the respondent on the date of resignation of the employment by first defendant on 11.12.2000 and as the suit was not instituted within three years from that date, it is barred by time. Case of the respondent is that in answer to the notice sent by respondent a letter was sent by defendants whereunder there is an acknowledgement and therefore limitation is saved. The question is whether the letter dated 29.1.2002 would operate as an acknowledgement. Learned Munsiff found that the question could be decided only on recording the evidence. If that be the case, learned Munsiff has to record the evidence and enter a finding on the question whether the suit is barred by CRP443/08 3 time or not. Learned Munsiff to proceed with the suit on other issues after entering a finding on this issue. Revision petition is disposed accordingly. M. SASIDHARAN NAMBIAR, JUDGE Okb/-