IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 7TH SEPTEMBER 2009 / 16TH BHADRA 1931 CRP.No. 172 of 2009() ------------------------------- AGAINST THE ORDER DATED 29/01/2009 IN IA.102/2007 IN OS.5/2007 of MUNSIFF COURT, KOLENCHERRY. .................... REVN. PETITIONER/PETITIONER/DEFENDANT ----------------------------------------------------------------- CHINNAMMA, AGED 76 YEARS, W/O.C.T. CHERIAN, KOCHUMANGALATH HOUSE, KOLENCHERY, KUNNATHUNAD TALUK, AIKKARANAD NORTH VILLAGE. BY ADV. MR.T.MADHU RESPONDENTS/RESPONDENTS/PLAINTIFFS ---------------------------------------------------------------- 1. ELIAS, AGED 63 YEARS, S/O.VARKEY, MUNDAYIL HOUSE, PERINGOL KARA, AIKKARANAD NORTH VILLAGE, KOLENCHERY. 2. THANKACHAN, S/O.ELIAS, AGED 42 YEARS, MUNDAYIL HOUSE, PERINGOL KARA, AIKKARANAD NORTH VILLAGE, KOLENCHERY. R1 & R2 BY ADV. MR.BASIL MATHEW. THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 07/09/2009, ALONG WITH CRP NO. 173 OF 2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRP.No. 172 of 2009 ORDER ON I.A. NO.658/2009 IN C.R.P. NO.172/2009 DISMISSED 07/09/2009. SD/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A. TO JUDGE rs. S.S.SATHEESACHANDRAN, J. ----------------------------------- C.R.P.Nos.172 & 173 of 2009 --------------------------------- Dated this the 7th day of September, 2009 O R D E R Both these revisions are filed by the defendant in O.S.No.5 of 2007 on the file of the Munsiff Court, Kolenchery. The above suit is one for fixation of boundary and consequential injunction and respondents are the plaintiffs. Petitioner/defendant along with his written statement to the suit filed two applications, one for rejection of the plaint as barred by res judicata and the other for dismissing the suit as not maintainable. Learned Munsiff after hearing both sides dismissed both the applications. Order passed by the learned Munsiff dismissing the application filed by the petitioner/plaintiff seeking rejection of the plaint is challenged in C.R.P.No.172 of 2009, and the order dismissing the petition filed seeking dismissal of the suit as not maintainable in C.R.P.No.173 of 2009. Propriety and correctness of the above two orders is challenged in the respective revisions. 2. I heard the counsel on both sides. 3. Previously, respondent/plaintiff had filed a suit as C.R.P.Nos.172 & 173 of 2009 2 O.S.No.32 of 2000 seeking a decree of perpetual prohibitory injunction in which the controversy sought to be adjudicated in the present suit was considered and decided and that suit was dismissed, was one of the grounds canvassed by the petitioner/defendant for rejection of the plaint and also dismissal of the suit as not maintainable in the respective petitions. Another ground canvassed was in a writ petition filed by the petitioner/defendant an undertaking was given by the plaintiff before this Court no obstruction would be caused to the pathway enjoyed by the defendant for access to the nearby national highway. Learned Munsiff after considering the merit of the applications, in the light of the objections raised by the plaintiff/respondent dismissed both the applications. Having heard the counsel on both sides and taking note of the orders passed by the learned Munsiff which are impugned in the revisions, I find the exercise taken by the court below was not warranted, especially when the defendant had already filed her written statement. If at all any question of res judicata was raised by the contentions advanced in the written statement C.R.P.Nos.172 & 173 of 2009 3 necessarily and inevitably an issue thereof has to be raised. The question then would emerge for consideration whether the issue has to be considered as a preliminary issue before proceedings with adjudication of the other issues as contemplated under Order XIV Rule 2 CPC. Along with the written statement petitioner/defendant moved two applications as already stated, one for rejection of the plaint and the other for dismissal of the suit as barred by res judicata. Prima facie when no ground was made out for rejection of the plaint which had already been received on the file of the court the petition seeking for such rejection should have been dismissed in limine. Since the defendant had already filed written statement, if any issue relating to res judicata was raised settling an issue thereof it has to be adjudicated to consider the merit of the other application. No piecemeal consideration of such issues on applications by the defendant is contemplated by the procedure. Any attempt to do so, needless to point out would only cause wastage of precious time of the court. I do not want to go into the merits of the orders challenged in the revisions. But I make it clear that the C.R.P.Nos.172 & 173 of 2009 4 impugned orders will not stand in the way of the court in considering the question of plea of res judicata if it is borne out by the contentions advanced by the defendant in the written statement. The question of rejection of the plaint raised by the defendant has no merit, and revision against that order is dismissed. The other revision, C.R.P.No.173 of 2009, is closed subject to the observations made above. S.S.SATHEESACHANDRAN, JUDGE. bkn/-