IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 7TH AUGUST 2009 / 16TH SRAVANA 1931 CRP.No. 434 of 2009() --------------------- AGAINST THE ORDER DATED 18/07/2009 IN IA-1214-2009 IN OS.343/2004 of I ADDL.M.C.,ERNAKULAM .................... REVISION PETITIONER(S): IST PETITIONER-2ND DEFENDANT: -------------------------------------------------------------------------------------------- K.A.FRANCIS @ KUNJACHAN,S/O.ANDREW, AGED 35,RESIDING AT KOTTAPURATH HOUSE, MOOLAMKUZHI,RAMESWARAM VILLAGE,COCHIN-5. BY ADV. MR.S.SREEKUMAR RESPONDENT(S): RESPONDENTS 1 TO 5/PETITIONERS 2 AND 3: ----------------------------------------------------------------------------------------------- 1. K.A.VINCENT,S/O.ANDREW, RESIDING AT KOTTAPURATH HOUSE,MOOLAMKUZHI, RAMESWARAM VILLAGE,COCHIN-5. 2. MRS.ANNET,W/O.ANDREW, RESIDING AT KOTTAPURATH HOUSE,MOOLAMKUZHI, RAMESWARAM VILLAGE,KOCHI-2.(DIED) 3. MRS.GRACY,W/O.JOHN, NO.229,4TH CROSS,KANABADAS LAYOUT, LINGARAJAPURAM,ST.THOMAS TOWN,BANGALORE-560 084. 4. K.A.DOMINIC,S/O.ANDREW, RESIDING AT KOTTAPURATH HOUSE, MOOLAMKUZHI,RAMESWARAM VILLAGE,COCHIN-5. 5. MRS.HELEN,W/O.ANTONY RAPHAEL, C/O.ANTONY RAPHAEL,EMPLOYED AT AMCO BATTERIES LTD., HEBBAT-24,RESIDING AT HOUSE NO.226. 6. MRS.PHILOMINA,W/O.GEORGE, KALYATH HOUSE,ALUVASSERY,NENMARA P.O.,PALAKKAD. 7. MRS.MAGGIE,W/O.JAYAN, C/O.ISSAC MOHAN @ JAYAN PARAKUDI VILA VEEDU, PARASALA,NEAR A.B.BS MEMORIAL CHURCH,PARASALA. THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 07/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss S.S. SATHEESACHANDRAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - C.R.P.No.434 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 7th August, 2009 ORDER The revision is directed against the order dated 18.7.2009 in I.A.No.1214 of 2009 in O.S.No.343 of 2004l passed by the learned Additional Munsiff, Kochi. Second defendant is the revision petitioner and the respondents are the plaintiffs and codefendants in the suit. The revision petitioner along with two other defendants had challenged the maintainability of the suit as barred by res judicata in their written statement and, accordingly an issue thereof was raised for adjudication in the suit. The above interlocutory application was filed by these defendants together for considering the issue of res judicata as a preliminary issue before going into the trial of the suit. There was an earlier suit for partition and the decree passed thereof which is pending in appeal constituted res judicata was the case advanced by these defendants. Whatever that be, it is the admitted fact that the attention of the court on the plea of res judicata was invited for consideration only at the fag end of the case when it was being included in the list for trial. The learned Munsiff, after considering the issue, has expressed the view that having regard to the factual controversies involved for adjudication in the suit, the C.R.P.No.434/09 - 2 - issue of res judicata cannot be determined as a pure question of law, but only as a mixed question of law demanding recording of the evidence and so much so, it can be considered only with other issues in trial. Learned counsel for the petitioner submitted before me that in view of the pendency of a civil miscellaneous appeal, though the issue had been raised earlier, the attention of the trial court could not be invited earlier for its determination. Suit has been instituted as early as in 2004 and now it is ripe for trial as evident from the order of the learned Munsiff. On the submissions made, it appears, the case has already been included in the special list for trial. That being so, no interference with the order passed by the learned Munsiff is permissible at this stage. Revision is dismissed. srd S.S. SATHEESACHANDRAN, JUDGE