IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 18TH DECEMBER 2009 / 27TH AGRAHAYANA 1931 WP(C).No. 24324 of 2009(O) -------------------------- OS.40/2008 of MUNI-MAGI.COURT,THODUPUZHA .................... PETITIONER(S): --------------- 1. CHIDAMBARAM PILLAI, S/O.KRISHNA PILLAI, KOTTARATHIL HOUSE, KUDAYATHOOR KARA, KUDAYATHOOR VILLAGE. 2. AYYAPPAN PILLAI, S/O.KRISHNA PILLAI, KOTTARATHIL HOUSE, KUDAYATHOOR KARA, KUDAYATHOOR VILLAGE. 3. K.SASI, S/O.PADMANABHA PILLAI, CHEMBILAKKAL HOUSE, KUDAYATHOOR KARA, KUDAYATHOOR VILLAGE. 4. SAJEEV, S/O.PADMANABHA PILLAI, CHEMBILAKKAL HOUSE, KUDAYATHOOR KARA, KUDAYATHOOR VILLAGE. 5. AJITH, S/O.PADMANABHA PILLAI, CHEMBILAKKAL HOUSE, KUDAYATHOOR KARA, KUDAYATHOOR VILLAGE. 6. LAKSHMY AMMA, W/O.PADMANABHA PILLAI, CHEMBILAKKAL HOUSE, KUDAYATHOOR KARA, KUDAYATHOOR VILLAGE. BY ADV. SRI.A.S.SAJUSH PAUL SRI.THOMAS JAMES MUNDACKAL SMT.K.U.BINI SRI.B.JAYASANKAR RESPONDENT(S): --------------- 1. MATHEW, AGED 58 YEARS, S/O.THOMAS, VEETTIYAMKAL HOUSE, ANAKKAYAM KARA, ALAKKODE VILLAGE, ANAKKAYAM P.O., THODUPUZHA. WPC.24324/09 2. K.K.CHANDRAN PILLAI, S/O.KRISHNA PILLAI, KOTTARATHIL HOUSE, KUDAYATHOOR KARA, KUDAYATHOOR VILLAGE, NOW RESIDING AT MEENUKRISHNA, AZAD ROAD, KALOOR, KOCHI-17. ADV. SRI.S.JAMES VINCENT FOR R1 SRI.GIGIMON ISSAC FOR R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC.24324/09 APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PLAINT IN O.S.NO.40/2008 DATED 28.1.2008 BEFORE THE MUNSIFF'S COURT, THODUPUZHA. EXT.P2: COPY OF WRITTEN STATEMENT FILED IN O.S.NO.40/2008 ON THE FILE OF THE MUNSIFF'S COURT, THODUPUZHA. EXT.P3: COPY OF COMMISSION APPLICATION DATED 22.7.2009 IN O.S.NO.40/08 BEFORE THE MUNSIFF'S COURT, THODUPUZHA. EXT.P4: COPY OF OBJECTION DATED 30.7.2009 IN COMMISSION APPLICATION EXT.P3. EXT.P5: COPY OF I.A.NO.1020/09 IN O.S.NO.40/08 FILED BEFORE THE MUNSIFF'S COURT, THODUPUZHA, DATED 30.7.2009. EXT.P6: COPY OF ORDER IN I.A.NO.959/09 IN O.S.NO.40/08 OF THE MUNSIFF'S COURT, THODUPUZHA DATED 3.8.2009. EXT.P7: COPY OF ORDER IN I.A.NO.1020/09 IN O.S.NO.40/08 OF THE MUNSIFF'S COURT, THODUPUZHA DATED 3.8.2009. /TRUE COPY/ P.A. TO JUDGE S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.24324 OF 2009 (O) ----------------------------------- Dated this the 18th day of December, 2009 J U D G M E N T Petitioners are defendants 2 to 7 in O.S.No.40 of 2008 on the file of the Munsiff Court, Thodupuzha. 1st respondent is the plaintiff and the 2nd respondent is the 1st defendant in the suit. Suit is one for declaration of right of prescriptive easement, injunction and for damages. Suit claim was resisted by the defendants filing a written statement, in which among other contentions, maintainability of the suit was also challenged as barred by limitation. An application was moved by the defendants to consider the bar of limitation as a preliminary issue. The learned Munsiff disposed that application vide Ext.P7 order holding that question can be considered with other issues in the trial of the suit. Ext.P7 is the copy of that order. An application filed by the plaintiff for ascertaining certain matters by appointing an Advocate WPC.24324/09 2 Commissioner, which was objected to by the defendants was also allowed by the court. Ext.P6 is the copy of that order. Propriety and correctness of Exts.P6 and P7 orders are challenged in the writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 2. I heard the counsel on both sides. From the submissions made and taking note of the facts and circumstances presented with reference to Exts.P6 and P7 orders challenged in the writ petition and other exhibits produced also, I find there is no impropriety or illegality in the orders passed by the learned Munsiff relegating the consideration of the question of limitation along with other issues arising for adjudication in the suit. Whether the suit is barred by limitation or not is a matter to be looked into at this stage only with reference to the allegations raised in the plaint. When facts are disputed and issues are raised, necessarily, an issue of limitation emerging from such disputed facts can be gone into only after taking evidence. An issue can be decided preliminarily as contemplated under Order XIV Rule 2 of the Code of Civil Procedure if only such WPC.24324/09 3 an issue can be decided without taking evidence. In Thiruvambadi Rubber Co. Ltd. v. Damodaran Nair (1984 KLT 586), it has been stated in unequivocal terms that “it is only an issue of law which goes to the root of the suit and capable of being decided without recording evidence that must be tried as a preliminary issue in the first instance under Rule 2 of Order XIV of the CPC.” So much so, in the given facts of the case, I find the learned Munsiff was right in holding that the issue of limitation raised by the defendants can be considered with other issues in trial. So far as the challenge raised against Exts.P6 and P7 orders appointing an Advocate Commissioner for conducting local inspection and measuring out the property and ascertaining such other matters, I find that it cannot also be impeached where it is seen that the defendant among other contentions had disputed the identity of the property as well. In that view of the matter, I find no interference with Exts.P6 and P7 order is called for and the writ petition is closed. S.S.SATHEESACHANDRAN JUDGE prp