IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 5TH AUGUST 2009 / 14TH SRAVANA 1931 WP(C).No. 6486 of 2009(O) ------------------------- OS.45/2007 of SUB COURT, KOYILANDY .................... PETITIONER(S): --------------- NAMBOORIKKANDY AMMAD S/O. IMBICHIMOITHY, ARIKKLAM AMSOM, KOYILANDY TLAUK, REPRESENTED BY POWER OF ATTORNEY HOLDR VARARUKANDY MADHAVAN NAIR. BY ADV. SRI.V.V.ASOKAN SMT.S.AMINA RESPONDENT(S): --------------- KOLARAKUTTIYIL BASHEER KEEZHARIYUR AMSOM, NADUVATHUR DESOM, KOYILANDY TALUK. ADV. SRI.R.PARTHASARATHY FOR R SRI.C.JAYACHANDRAN FOR R THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC.6486/09 APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PLAINT IN O.S.NO.45 OF 2007 OF THE SUB COURT, KOYILANDY. EXT.P2: COPY OF THE WRITTEN STATEMENT AND COUNTER CLAIM FILED BY DEFENDANT IN O.S.NO.45 OF 2007, SUB COURT, KOYILANDY. EXT.P3: COPY OF THE WRITTEN STATEMENT FILED BY PLAINTIFF TO THE COUNTER CLAIM IN O.S.NO.45 OF 2007, SUB COURT, KOYILANDY. EXT.P4: COPY OF THE JUDGMENT IN W.P.(C).NO.26125/2008 OF THIS HONOURABLE COURT. EXT.P5: COPY OF THE ORDER OF THE SUB COURT, KOYILANDY IN O.S.NO.45 OF 2007. /TRUE COPY/ P.A TO JUDGE S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.6486 OF 2009 (O) ----------------------------------- Dated this the 5th day of August, 2009 J U D G M E N T The writ petition is filed seeking the following reliefs: i. to call for the records of the case leading to Ext.P5 order and set aside the finding recorded therein in respect of issue No.8 by the issue of an appropriate writ or order in the nature of certiorari or other appropriate writ, direction or order. ii. to grant such other orders as may be deemed necessary in the facts and circumstances of this case and in the interests of justice. 2. Petitioner is the plaintiff in O.S.No.45 of 2007 on the file of the Sub Court, Koyilandy and the suit is for enforcement of the right of preemption of the plaintiff to get a sale deed of the shares of the defendant, a purchaser of the portions of the suit property. The respondent is the defendant in the suit and in his written statement, setting forth a case that there was an agreement by all the sharers to sell their respective shares in the property in his favour and pursuant to that agreement, he obtained 5/6 th share from all sharers except the assignor of the WPC.6486/2009 2 plaintiff who retracted from her promise to convey her 1/6 th share. A counter claim was raised for specific enforcement of the agreement of sale of the 1/6 th share which the plaintiff subsequently got from the assignee, his mother. To the counter claim, the plaintiff filed written statement. Issues were cast by the court in which on the basis of the contentions raised, sufficiency of court fee, whether the claim of preemption of the defendant is barred by limitation etc. were included. After considering three of the issues raised as preliminary issues, an order was passed by the learned Sub Judge on such issues and its correctness was challenged by the plaintiff before this Court earlier in W.P.(C).No.26125 of 2008 by judgment dated 29.8.2008. The findings entered by the learned Sub Judge on the preliminary issues were set aside directing reconsideration of the issues and entering of appropriate findings thereof in accordance with law. Pursuant thereto, after hearing both sides, the learned Sub Judge reconsidered the preliminary issues and entered a finding that the court fee paid in the counter claim is not sufficient but court fee paid by the plaintiff is correct and the preemption WPC.6486/2009 3 claimed by the defendant is not barred by limitation as contended by the plaintiff. Petitioner/plaintiff has filed this writ petition to the extent he is aggrieved by the order of the court below that the preemption claim of the defendant was held to be not barred by limitation. Propriety and correctness of Ext.P5 order of the court below to the extend indicated above is challenged in the writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 3. I heard the counsel on both sides. At the time of hearing, the learned counsel for the respondent/defendant submitted that in his written statement, no claim of preemption was raised and the issue cast that whether his claim of preemption was barred by limitation on the basis of the written statement filed by the plaintiff to his counter claim was not correct and also quite unnecessary. However, in view of the earlier decision made by the court below on the preliminary issues, and which was challenged in writ petition earlier, in which some observations were made as if there was WPC.6486/2009 4 a claim of preemption by the defendant in his counter claim, it is submitted a further enquiry on that question was made and in Ext.P5 order, the court below has formed an opinion that the claim of preemption of the defendant is not barred by limitation. The defendant has specifically contended in his written statement raising a counter claim that there was an agreement of sale with all the sharers including the assignor of the plaintiff and he is entitled to enforce that agreement as against the plaintiff, the assignee. There was no claim of preemption by the defendant in paragraph 12 of his written statement. An alternate prayer was made that if at all the suit claim of the plaintiff for enforcement of preemption is found acceptable, then he is prepared to purchase the 1/6 th share of the plaintiff. That was misinterpreted and in the written statement filed by the plaintiff to the counter claim, a case was presented as if the defendant had raised a claim of preemption. Copy of the written statement filed by the defendant is produced in the writ petition as Ext.P2. Ext.P3 is the written statement filed by the plaintiff to the counter claim raised in the Ext.P2 written statement of the defendant. WPC.6486/2009 5 Perusing Exts.P2 and P3 with reference to Ext.P1, copy of the plaint, I am satisfied that the defendant has not raised any claim of preemption in his written statement while setting up a counter in the suit. That being so, the issue raised by the court below whether the counter claim of the defendant is barred by limitation based on Ext.P3 written statement of the plaintiff to the counter claim of the defendant was quite unwarranted, and it is ordered to be struck of. The findings entered by the court below in Ext.P5 order with respect to that issue is of no consequence as the issue has been ordered to be struck of. The writ petition filed only in respect of the findings made by the court below on that issue and in view of the striking of that issue by this Court as having been unwarranted in the nature of the pleading involved, the petition does not survive for consideration, and it is closed. S.S.SATHEESACHANDRAN JUDGE prp WPC.6486/2009 6