IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 26TH MAY 2008 / 5TH JYAISHTA 1930 WP(C).No. 15512 of 2008(V) -------------------------- AGAINST THE ORDER DATED / / IN IA 3056/2007 IN OS.338/2007 of MUNSIFF COURT,MUVATTUPUZHA .................... PETITIONER: ------------ DR.P.V.JOSEPH, PUKKENNUEL, PUTHUPPADY MUVATTUPUZHA BY ADV. SRI.ELDHOSE ELIAS RESPONDENTS: ------------- PRASAD P.VARGHESE PUKKUNNEL, PUTHUPPADY PO., MUVATTUPUZHA BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26/05/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ------------------------------- W.P.(C) No.15512 of 2008 ------------------------------- Dated this the 26th May, 2008. J U D G M E N T Petitioner is the defendant in O.S.No.338/2007, on the file of the Munsiff Court, Muvattupuzha. He filed I.A.No.3056/2007, an application to hear the question of maintainability of the suit as a preliminary issue. Under Ext.P18 order, learned Munsiff disposed the same, holding that as the issue involved is a mixed question of fact and law, it cannot be decided as a preliminary issue. It is challenged in this petition filed under Article 227 of the Constitution of India. 2. The learned counsel appearing for the petitioner was heard. The argument of the learned counsel for the petitioner is that Education Department has already held that petitioner is the manager of the school, and the Government has also approved the same, and in such circumstances, court below should have decided the suit on the preliminary issue. It was argued that though the petitioner has produced 13 documents in support of his case that he is the manager, those documents were not exhibited and the trial court did not W.P.(C) No.15512/08 2 consider the validity of those documents and the claim, and hence, Ext.P18 order is to be quashed. The learned counsel further submitted that another writ petition is also pending challenging the order passed by the Government upholding the orders passed by the Department, and no adverse order as against the petitioner was passed therein, and therefore, in view of the order passed by the Department and the Government, trial court should have decided the question of maintainability as a preliminary issue, and therefore, Ext.P18 order is to be quashed. 3. Rule 2 of Order XIV of Code of Civil Procedure provides that notwithstanding that a case may be disposed of on a preliminary issue and subject to the provisions of Sub-rule 2, Court shall pronounce judgment on all issues. Sub-rule 2 of Rule 2 enables the Court to dispose the suit on an issue of law only. It provides that where issues both of law and of fact arise in the same suit, and the Court is of the opinion that the case or any part of the case may be disposed of on an issue of law only, it may try that issue first, if that issue relates to the jurisdiction of the Court or a bar to the suit created by any law for the time being in force, and for that purpose, if it thinks fit, may postpone the settlement of other issues until after that issue has been determined, and may deal with the suit in accordance with W.P.(C) No.15512/08 3 the decision on that issue. Therefore, under Sub-rule 2 to Rule 2 of Order XIV, the Court can dispose the suit on answering the preliminary issue only if the suit could be disposed of on the issue regarding the jurisdiction of the Court or a bar to the suit created by any law for the time being in force. But when that issue which is sought to be heard as a preliminary can be disposed of only after recording evidence, then suit cannot be disposed by answering the preliminary issue as provided under Rule 2. Though appointment of petitioner as Manager was approved by the Department and the Government, it is admitted that the matter is pending before this Court in the Writ petition. In such circumstances, it cannot be said that Ext.P18 order is illegal. Though Sub-rule 2 enables the Court, if it thinks fit, to postpone the settlement of other issues, in the facts explained in this case, I do not find that any interference is warranted. The trial court is directed to dispose the suit as expeditiously as possible. Writ petition is disposed as above. M.SASIDHARAN NAMBIAR, JUDGE nj.