IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 13TH JUNE 2008 / 23RD JYAISHTA 1930 WP(C).No. 5534 of 2008(H) ------------------------------------ OS.382/2003 of MUNSIFF COURT,PATHANAMTHITTA .................... PETITIONER: ------------------- THE MYLAPARA SERVICE CO-OPERATIVE BANK LIMITED NO.639, MYLAPRA, PATHANAMTHITTA DISTRICT, REPRESENTED BY ITS SECRETARY. BY ADV. SRI.P.V.BABY SRI.A.N.SANTHOSH RESPONDENTS: ---------------------- 1. RAJAGOPALAN NAIR, PUTHENPARAMBIL HOUSE, PALAMAROOR MURI, PRAMADOM VILLAGE, PATHANAMTHITTA DISTRICT. 2. SARASAMMA NAIR, W/O.M.P.BHASKARAN NAIR, MELEDATHU BINDU BHAVAN, AZHOOR MURI, PATHANAMTHITTA VILLAGE, KOZHENCHERRY TALUK. BY ADV. SRI.PHILIP M.VARUGHESE - R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.5534/2008 APPENDIX PETITIONERS EXHIBITS EXT.P1:- COPY OF THE MORTGAGE DEED BEARING NO.2706/1995 EXECUTED BY G.SUBRAMANIYA PILLAI AND OMANA SUBRAMANIYAN IN FAVOUR OF THE PETITIONER. EXT.P2:- COPY OF THE MORTGAGE DEED BEARING NO.2707/1995 EXECUTED BY G.SUBRAMANIYA PILLAI IN FAVOUR OF THE PETITIONER. EXT.P3:- COPY OF THE MORTGAGE DEED BEARING NIO.2113/1997 EXECUTED BY G.SUBRAMANIYA PILLAI IN FAVOUR OF THE PETITIONER. EXT.P4:- COPY OF THE AWARD DT. 16.9.99 ARC NO.1178/1999. EXT.P5:- COPY OF THE AWARD DT. 16.9.99 ARC NO.1179/99. EXT.P6:- COPY OF THE AWARD DT. 16.9.99 ARC NO.1185/99. EXT.P7:- COPY OF THE LAWYER NOTICE DT. 19.2.2000 ISSUED BY ADV. K.N.YESODHAN TO THE PETITIONER. EXT.P8:- COPY OF THE REPLY NOTICE DT. 27.2.2000 SENT BY THE PETITIONER TO ADV. K.N.YESODHAN. EXT.P9:- COPY OF THE ORDER DT. 17.3.2003 ISSUED BY THE JOINT REGISTRAR OF CO- OPERATIVE SOCIETIES (G)., PATHANAMTHITTA. EXT.P10:- COPY OF THE NEWS ITEM APPEARED IN PRADESIKAM DAILY DT. 25.1.2000. EXT.P11:- COPY OF THE NEWS ITEM APPEARD IN MALAYALA MANORAM DAILY DT. 25.11.02. EXT.P12:- COPY OF THE REGISTERED DEED BEARING NO.954/03 DT. 31.3.2003. EXT.P13:- COPY OF THE OS. 382/03 FILED BY THE 2ND RESPONDENTS BEFORE THE MUNSIFF'S COURT., PATHANAMTHITTA. EXT.P14:- COPY OF THE WRITTEN STATEMENT DT. 17.2.2004 FILED BY THE PETITIONERIN EXT.P13. EXT.P15:- COPY OF THE AMENDMENT PETITION FILED BY THE 2ND RESPONDENT IN OS. NO.382/2003. W.P.(C) NO.5534/2008 EXT.P16:- COPY OF THE WRITTEN STATEMENT DT. 22.1.2007 FILED BY THE PETITIONER AFTER EXT.P13 AMENDMENT . EXT.P17:- COPY OF THE COUNTER CLAIM DT. 7.3.2000 FILED BY THE PETITIONER IN THE SUIT. EXT.P18:- COPY OF THE WRITTEN STATEMENT FILED BY THE 2ND RESPONDENT IN EXT.P17. /TRUE COPY/ P.A. TO JUDGE tss M.SASIDHARAN NAMBIAR, J. ........................................... WP(C).No. 5534 OF 2008 ............................................ DATED THIS THE 13th DAY OF JUNE, 2008 JUDGMENT Petitioner is the first defendant in O.S.382 of 2003 on the file of Munsiff Court, Pathanamthitta, represented by second defendant. Suit is filed to declare that auction sale conducted by the Joint Registrar of Co-operative Societies is not binding on the plaintiff or the plaint schedule property and also to realise damages. Petitioner, along with second defendant, Secretary filed Ext.P14 written statement. Along with the written statement, a counter claim, Ext.P17, was also raised. Ext.P18 written statement to the counter claim was also filed by the plaintiff. This petition is filed under Article 227 of Constitution of India to declare that Munsiff Court, Pathanamthitta has no jurisdiction to try Ext.P13 suit in view of the specific bar under Section 100 of Kerala Co-operative Societies as well as Rule 83 (5) of the Rules framed thereunder. 2. Learned counsel appearing for petitioner was heard. Learned counsel submitted that even though a counter claim was filed and a written statement was also filed to the counter claim, learned Munsiff did not frame issues on the pleadings in WP(C) 5534/2008 2 the counter claim and suit was included in the special list on 16.2.2008, without considering the question of bar of jurisdiction raised in the written statement. 3. On hearing the learned counsel, I do not find it just or proper for this court to consider the question of jurisdiction. It is for the learned Munsiff to consider based on the pleadings raised before it. Learned counsel submitted that in spite of specific pleading, no issue on the bar of the suit under Section 100 of Co-operative Societies Act was framed. If that be the case, it is for the petitioner to move Munsiff Court, Pathanamthitta to frame additional issue as provided under Rule 5 of Order XIV of Code of Civil Procedure. If a petition is so filed, in view of the contentions raised, learned Munsiff has to frame necessary issues, if relevant and necessary issues are not framed. Petitioner is also at liberty to file an application to decide the issue regarding maintainability of the suit as a preliminary issue. Petition disposed accordingly. M.SASIDHARAN NAMBIAR, JUDGE lgk/-