IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 17TH SEPTEMBER 2009 / 26TH BHADRA 1931 CRP.No. 279 of 2009() --------------------- OS.128/2008 of MUNSIFF COURT, VADAKARA .................... REVN. PETITIONER(S)DEFENDANTS 1 TO 8 & 10 TO 12: --------------------- 1. S.G.M.S.B. SCHOOL WELFARE COMMITTEE REG.NO.196/77,S.G.M.S.B SCHOOL VATAKARA AMSOM DESOM, VATAKARA TALUK KOZHIKODE DISTRICT REPRESENTED BY ITS PRESIDENT SRI.M.K.PRABHAKARAN, VATAKARA AMSOM DESOM VATAKARA TALUK, KOZHIKODE DISTRICT. 2. SRI.K.DAMODHARAN NAMBIAR, S/O.SANKARAN ADIYODI, MEMBER SECRETARY SGMSB SCHOOL WELFARE COMMITTEE KALARIYULLATHIL, PUTHOOR, NADAKKUTHAZHA AMSOM PUTHOOR DESOM VATAKARA TALUK, KOZHIKODE DISTRICT. 3. PROF. KARATHANAD NARAYANAN @ K.NARAYANAN S/O.MAPPAN, GITHALAYA, NUT STREET VATAKARA-673 104,VATAKARA AMSOM DESOM VATAKARA TALUK. 4. AD K.KUNHAMMED @ KOROTH KUNHAMMED S/O.ABDUL KADER MEMBER SGMSB SCHOOL WELFARE COMMITTEE VATAKARA AMSOM DESOM, VATAKARA TALUK KOZHIKODE DISTRICT. 5. ADV K.VASUDEVAN, S/O.KELAPPAN MEMBER SGMSB SCHOOL WELFARE COMMITTEE NEAR PUBLIC LIBRARY,VATAKARA AMSOM DESOM,VATAKARA TALUK KOZHIKODE DISTRICT. 6. ADV. M.K.PRABHAKARAN, S/O.KELAPPAN MEMBER PRESIDENT SGMSB SCHOOL WELFARE COMMITTEE VATAKARA AMSOM DESOM,VATAKARA TALUK KOZHIKODE DISTRICT. 7. ADV.K.V.SAMBASIVAN, S/O.K.S.NARAYANA IYER, MEMBER TREASUER SGMSB SCHOOL WELFARE COMMITTEE VATAKARA AMSOM DESOM,VATAKARA TALUK KOZHIKODE DISTRICT. CRP.279/09 8. ADV.T.KUNHIRAMAKURUP,S/O.KELU NAMBIAR MEMBER SGMSB SCHOOL WELFARE COMMITTEE NEAR INDOOR STATIUM, VATAKARA AMSOM DESOM,VATAKARA TALUK KOZHIKODE DISTRICT. 9. PROF.DR.C.P.SIVADAS, S/O.KELAPPAN MEMBER SGMSB SCHOOL WELFARE COMMITTEE HOSPITAL ROAD, VATAKARA AMSOM DESOM,VATAKARA TALUK KOZHIKODE DISTRICT. 10. MANAGER, SGMSB SCHOOL VATAKARA AMSOM DESOM,VATAKARA TALUK KOZHIKODE DISTRICT. 11. HEADMASTER, SGMSB SCHOOL VATAKARA AMSOM DESOM,VATAKARA TALUK KOZHIKODE DISTRICT. BY ADV. SRI.B.KRISHNAN SRI.R.PARTHASARATHY RESPONDENT(S)/PLAINTIFF, D9 TO D13: --------------- 1. T.P.PURUSHOTHAMAN, S/O.NANU 40 YEARS, THAZHA PULARIKKAL, AUTO DRIVER NADAKKUTHAZHA AMSOM DESOM, VATAKARA TALUK KOZHIKODE DISTRICT. 2. P.P.PAVITHRAN, S/O. CHATHU,36 YEARS KANIYANKANDI MEETHAL, NADAKKUTHAZHA AMSOM DESOM, VATAKARA TALUK KOZHIKODE DISTRICT. 3. ADV.N.L.KRISHNA MOORTHI, S/O.LAKSHMI NARAYAN IYER, (MEMBER SGMSB SCHOOL WELFARE COMMITTEE LAKSHMI SADAN, NEAR SGMSB SCHOOL, VATAKARA AMSOM DESOM,VATAKARA TALUK KOZHIKODE DISTRICT. 4. ASSISTANT EDUCATIONAL OFFICER, VATAKARA ASSISTANT EDUCATION OFFICE, NEAR THE COURT VATAKARA AMSOM DESOM,VATAKARA TALUK KOZHIKODE DISTRICT. THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 17/09/2009 ALONGWITH WPC NO.14576 OF 2009 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON I.A.NO.1056/2009 IN CRP.279/2009 DISMISSED. 17.9.2009 SD/- S.S.SATHEESACHANDRAN, JUDGE /TRUE COPY/ P.A. TO JUDGE S.S.SATHEESACHANDRAN, J. ------------------------------- C.R.P.NO.279 OF 2009 & W.P.(C).NO.14576 OF OF 2009 () ----------------------------------- Dated this the 17th day of September, 2009 O R D E R The above revision and writ petition are filed challenging two orders passed by the learned Munsiff, Vadakara in O.S.No.128 of 2008 instituted by the 1st and 2nd respondents, common in both revision and writ petition, seeking a declaration that some of the appointments made to a School by its Management are liable to be set aside and for consequential injunction. The petitioners/defendants in the suit are the Corporate Educational Agency managing a School and the office bearers of the Management Committee of that School. The contesting defendants resisted the suit filing a written statement, in which, among other contentions, its maintainability was also impeached. After settling down the issues on the basis of the pleadings, the maintainability of the suit was considered by the court as preliminary issue and an C.R.P.NO.279 OF 2009 & W.P.(C).NO.14576 OF OF 2009 2 order was passed holding that the suit is maintainable. The order so passed is challenged in the revision by defendants 1 to 8 and 10 to 12 in the suit, and the respondents therein are the plaintiff and defendants 9 and 13. With the suit, the plaintiffs had moved an application for an interim injunction to restrain the management of the School from giving effect to some appointments of teachers, in respect of which the process of selection was then in progress. To sustain the interim relief claimed under that application, the plaintiffs had also applied for production of some documents by the Management of the School filing an application under Order XI Rule 12 of the Code of Civil Procedure. The court initially allowed that application by directing the 9th defendant, who was then the Manager of the School, to produce the documents sought for. However, later, there was a change of Manager in the School with the 9th defendant relieved from that office. There appears to be some disputes over the change of management in respect of which advertence by this Court is not necessary for disposal of both these petitions. Any how, the directions issued for production of the C.R.P.NO.279 OF 2009 & W.P.(C).NO.14576 OF OF 2009 3 documents as sought for by the plaintiff not being complied with, the plaintiff moved another application for implementing the previous order. The learned Munsiff thereupon passed Ext.P4 order produced in W.P.(C).No.14576 of 2009 directing defendants 1 and 2 in the suit to produce the documents. The directions so issued are challenged by filing the writ petition invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 3. Notice was ordered to the respondents. In the revision, service had been completed, but, one of the respondents alone entered appearance. In the writ petition, on the orders passed by this Court, notice was served on the respective counsel for the respondents in the court below and a memo filed evidencing such service. It is submitted by the learned counsel that in the revision also such service has been effected. Still, other than the 1st respondent and 2nd respondents in revision, other respondents have not entered appearance. C.R.P.NO.279 OF 2009 & W.P.(C).NO.14576 OF OF 2009 4 4. I heard the learned counsel for the petitioners. In respect of the order passed by the court below holding that the suit is maintainable, which is challenged in the revision, the learned counsel for the petitioners submitted that very many vital issues involved in the suit requiring to be adjudicated on the basis of the evidence let in have been prejudged by the court below, and the observations and findings made under the order, if not removed, would cause prejudice to the contesting defendants in substantiating their challenges to the suit claim. Perusing the order passed by the court below with reference to the plaint and also the written statement, copies of which are produced, I find considerable force in the submissions made by the learned counsel. The learned counsel invited my attention to Section 91 of the CPC and Section 33 of the Kerala Education Act to emphasis that the suit for the reliefs claimed is prima facie not entertainable before the civil court. I am not going into the merits of the question whether the suit is maintainable or not in the present proceedings since I find that the issue raised in the suit, which was tried as a preliminary issue, in the given facts C.R.P.NO.279 OF 2009 & W.P.(C).NO.14576 OF OF 2009 5 of the case, would not come under Order XIV Rule 2 (2) of the CPC. If only an issue which can be decided without taking evidence can dispose of the suit like the bar under a statute or under any other law, then only the court is competent to decide that question as a preliminary issue. Needless to point out that the Rule 2 covered by Order XIV of CPC indicate that decision of the issues should lead to passing of a judgment. That is also indicative what issues can be tried preliminarily which would have the effect of rendering the judgment in the suit. So much so, the findings entered by the court on the maintainability of the suit, which is challenged in the revision is liable to be set aside, and, I do so, directing the learned Munsiff to consider that issue afresh with other issues in the trial in the light of the evidence to be let in the case. None of the observations made by the learned Munsiff in the impugned order shall have any bearing or reflection in the decision to be formed afresh on the question of maintainability of the suit. Challenge raised in the writ petition relate to the order passed by the court for production of documents on the C.R.P.NO.279 OF 2009 & W.P.(C).NO.14576 OF OF 2009 6 application moved by the plaintiffs to the suit. Prima facie, it appears the court did not consider any of the objections raised by the defendants as to why such discovery cannot be ordered. For the solitary reason that previously an order had been passed, which was binding on the 9th defendant, the erstwhile Manager of the School, it appears, the court passed the subsequent orders as well. I direct the court to consider the question afresh giving an opportunity to the contesting defendants and then decide the matter afresh. Revision and writ petition are disposed as indicated above. S.S.SATHEESACHANDRAN JUDGE prp