IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN FRIDAY, THE 14TH NOVEMBER 2008 / 23RD KARTHIKA 1930 WP(C).No.33690 of 2008 (I) ---------------------------------- OS.494/2005 of I ADDL.SUB COURT,TRIVANDRUM .................... PETITIONER/PLAINTIFF: ----------------------------- A.K.ARUN KUMAR, S/O. APPUKUTTAN NAIR, RESIDING AT KARTHIKA, V.P. III/332/A, CHENNIKONAM, MANIKANTESWARAM P.O., PEROORKADA, THIRUVANANTHAPURAM. BY ADV. SRI.NAIR AJAY KRISHNAN SRI.R.T.PRADEEP RESPONDENTS/DEFENDANTS: ----------------------------------- 1. UNION OF INDIA, REPRESENTED BY THE SECRETARY, MINISTRY OF DEFENCE,NEW DELHI. 2. ADJUTANT GENERAL, AG'S BRANCH, ARMY HEAD QUARTERS, WEST BLOCK , R.K. PURAM, NEW DELHI. 3. THE COMMANDANT, NATIONAL DEFENCE ACADEMY, KHADAKWASLA PUNE, MAHARASHTRA. ADV. SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ W. P. C. No.33690 of 2008 ------------------------------------------------ Dated this the 14th day of November, 2008 JUDGMENT The petitioner who is the plaintiff in O.S.494/05 on the file of the First Additional Sub Court, Thiruvananthapuram has sought for Ext.P4 order passed by the First Additional Sub Judge being set aside and to grant such other relief as this Court deems fit. 2. It is submitted by the counsel for the petitioner that O.S.494/05 is one filed by the petitioner claiming damages to the tune of Rs.10 lakhs for discharging him from the Army service allegedly after meting out inhuman treatment to him. The court below entertained a doubt as to whether the suit will be maintainable. He has heard the submissions of both sides. He was not convinced that the subject matter is something that can be dealt with by a Civil Court and further that even if W. P. C. No.33690 of 2008 -2- a Civil suit will be maintainable whether it can be maintained before the Court at Thiruvananthapuram, the suit being one claiming damages against the National Defence Academy authorities and the Government of India. It appears that when the court expressed a doubt as to the maintainability, the counsel for the plaintiff remarked that the court may not jump to conclusions. Expressing the views of the court obviously is not jumping to conclusions. The court afforded the plaintiff one month's time to submit arguments and to make available any authority to show that such a suit will be maintainable in a Civil Court and that too in a Civil Court at Thiruvananthapuram. It is that order that is produced as Ext.P4 and is assailed in this Writ Petition. In short the writ petition is against adjournment of the case for hearing further arguments on the maintainability of W. P. C. No.33690 of 2008 -3- the suit. The learned counsel for the petitioner may prepare the case well and argue in the court below as regards the maintainability. Ext.P4 does not deserve to be quashed. 3. All the same, after advancing arguments, counsel for the petitioner submits that written statement is not filed by any of the defendants in the suit. If at all no written statement is filed by the defendants the court below shall hear the issue regarding maintainability only after such an issue is raised on the pleadings in the written statement if any. The court below is also directed not to dispose of the suit consequent on entering finding regarding the maintain- ability without affording an opportunity to the aggrieved party to challenge the correctness of the findings before appellate or revisional forum as the case may be. W. P. C. No.33690 of 2008 -4- 4. With the above directions this Writ Petition is disposed of. K.P.BALACHANDRAN, JUDGE kns/-