IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 10TH AUGUST 2010 / 19TH SRAVANA 1932 WP(C).No. 9668 of 2010(O) ------------------------- OS.1100/2009 of PRINCIPAL SUB COURT,ERNAKULAM .................... PETITIONER: --------------- SUNNY JOHN JOHN ANTHRAPER, S/O.LATE T.JOHN ANTHRAPER, RESIDING AT MALIYEKKAL HOUSE, "RESHMA GARDENS",ADAMPILLY ROAD, VENNALA PO, COCHIN-682 018, ERNAKULAM DISTRICT. BY ADV. SRI.N.SUBRAMANIAM SRI.M.S.NARAYANAN RESPONDENT: --------------- SHAJI K.MTHEW, S/O.K.C.MATHEW,ANCHORAGE, DOOR NO.32/3024 A,MAHAKAVI VYLOPPILLY ROAD, PONNURUNNI,VYTTILA PO, KOCHI-682 019,NOW AT FLAT NO.5,SYIVEN HEIGHTS, CHILAVANNOR ROAD,KADAVANTHRA. ADV. SRI.S.SREEKUMAR FOR R SRI.P.MARTIN JOSE FOR R THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 9668 of 2010 APPENDIX PETITIONERS' EXHIBITS: EXHIBIT P1 : AGREEMENT OF SALE EXHIBIT P2 : AFFIDAVIT IN SUPPORT OF I.A.No.97 OF 2009 IN O.S.No.1100 OF 2009 AND I.A.No.97 OF 2009 IN O.S.No.1100 OF 2009 ON the FILE OF THE SUB COURT, ERNAKULAM EXHIBIT P3 : ORDER PASSED IN I.A.No.97 O F2009 IN O.S.No.1100 OF 2009 BY the SUB COURT, ERNAKULAM RESPONDENTS' EXHIBITS: NIL True Copy P.A to Judge THOMAS P JOSEPH, J. ---------------------------------------- W.P.C.No.9668 of 2010 --------------------------------------- Dated this 10th day of August, 2010 JUDGMENT Ext.P3, order dated 08-01-2010 on I.A.No.97 of 2009 in O.S.No.1100 of 2009 of the court of learned Sub Judge, Ernakulam is under challenge in this writ petition at the instance of defendant in the suit. Respondent, one Shaji K. Mathew filed the suit against petitioner for recovery of balance advance sale consideration pursuant to an agreement for sale (Ext.P1). Petitioner/defendant contended that he had no transaction with M/s. V.K.L Plantation Pvt. Ltd and V.K.L Properties Pvt. Ltd. which are shown to be the company represented by Shaji K. Mathew in the plaint. Challenging maintainability of the suit on the ground that petitioner has no privity of contract with the said companies he filed I.A.No.97 of 2009 (Ext.P2) to hear maintainability of the suit. Learned Sub Judge passed Ext.P3, order stating that signature of petitioner is seen in Ext.P1, agreement for sale dated 08-04-2006, there is acceptance of Rs.350 lakhs as advance sale consideration and hence it cannot be said that petitioner has no privity of contract with the plaintiff. Observing so, application was dismissed. Learned counsel for W.P.C.No.9668 of 2010 : 2 : petitioner contends that question raised in Ext.P2, application was not considered by the learned Sub Judge and instead, irrelevant matters are stated to dismiss Ext.P2, application. It is alternatively contended by learned counsel that in case evidence on the question urged by petitioner was necessary, learned Sub Judge ought to have recorded evidence before disposing of Ext.P2, application. 2. I have heard learned counsel for respondent as well. Learned counsel for respondent asserts that in the agreement and plaint respondent has joined in his individual capacity and not as representing companies referred to in the plaint. 3. In Ext.P1, agreement respondent describes him as Shaji K. Mathew, S/o. K. C. Mathew aged 32 years, Manager Middle East Hotel Company Pvt.Ltd. while in the plaint plaintiff is described as Shaji K. Mathew giving his residential address. Of course, in the body of the plaint it is stated that he is the Director of M/s. V.K.L Plantation Pvt. Ltd and V.K.L Properties Pvt. Ltd. It is from the above descriptions that learned counsel for respondent has contended that agreement and plaint are in individual capacity of respondent and not as representing any company as the address of respondent in the plaint and Ext.P1, W.P.C.No.9668 of 2010 : 3 : agreement states. Learned counsel for petitioner in response produced certain documents which according to him would show that it was the company referred to in Ext.P1, agreement which had authorised respondent to negotiate and enter into Ext.P1, agreement. 4. I am persuaded to think that these matters require evidence to decide whether respondent had entered in the agreement and sued petitioner in his individual capacity or it was on behalf of companies referred to in Ext.P1, agreement and plaint. Under Order 14 Rule 2 of the Code of Civil Procedure (for short, “the Code”), an issue can be heard and disposed of as a preliminary issue if it relates to jurisdiction of the court or bar to the suit created by any law provided it is based on an issue of law only. This court in Mathew Vs Allen George (2006(4) KLT S.N.11 (Page No.8)) has stated that once it is seen that evidence is to be recorded, issue will not fall under sub rule (2) of Order 14 Rule 2 of the Code. In the present case having heard counsel on both sides I am persuaded to think that it requires evidence to decide the issue raised. In that situation and also since it is without referring to the contention raised by petitioner that Ext.P3 order was passed, that order is liable to be set aside. W.P.C.No.9668 of 2010 : 4 : Having regard to the facts and circumstances of the case it is only appropriate that contention raised by petitioner are heard and decided along with the suit. Resultantly this writ petition is allowed. Ext.P3, order is set aside. It is directed that if appropriate contention is raised in the written statement, learned Sub Judge shall raise an issue regarding maintainability of the suit in the way it is contended by petitioner and that issue be tried and decided along with the suit. (THOMAS P JOSEPH, JUDGE) Sbna/-