IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 4TH JULY 2011 / 13TH ASHADHA 1933 OP(C).No. 2101 of 2011(O) ------------------------- OS.177/2011 of SUB COURT,NEYYATTINKARA .................... PETITIONER ------------------------ SHAJI THOMAS, MANJANGAL HOUSE, KAKKANADU LANE, KESAVADASAPURAM, ULLOOR VILLAGE, THIRUVANANTHAPURAM. BY ADV. MR. B.S.SWATHY KUMAR SMT.ANITHA RAVINDRAN SMT.M.G.AISHWARYA RESPONDENTS: --------------- 1. DAMIYAN LOUIS, S/O.CHINNAPPAN LOUISE, SACRED HEART HOUSE, AMBALATHIN MOOLA, CHOWARA P.O., NEYYATTINKARA, THIRUVANANTHAPURAM-695501, REP. BY P/A.HOLDER JOHNPAUL LOUIS. 2. ZIRIL MORAIS, S/O.ISTHORE MORIES, ST.JACOB HOUSE, PULLUVILA, PULLUVILA P.O., NEYYATTINKARA-695525. 3. DORIS DAVID, ELIZABETH VILA, PLAMOODU, CHIRAYINKEEZHU, THIRUVANANTHAPURAM-695004. 4. ELIZABETH, ELIZABETH VILA, PLAMOODU, CHIRAYINKEEZHU, THIRUVANANTHAPURAM-695004. 5. MRIDULLA MERCY, ELIZABETH VILA, PLAMOODU, CHIRAYINKEEZHU, THIRUVANANTHAPURAM-695004. 6. MICHALE DAVID, ELIZABETH VILA, PLAMOODU, CHIRAYINKEEZHU, THIRUVANANTHAPURAM-695004. 7. LEONARD, BARTHOLOMIA, T.C.27/479(1), GAS HOUSE ROAD, KUNNUKUZHY, KANNANMOOLA, THIRUVANANTHAPURAM.-695007 OP(C).No. 2101 of 2011(O) 8. STANLY BARTHLOMIA, T.C.27/479(1), GAS HOUSE ROAD, KUNNUKUZHY, KANNANMOOLA, THIRUVANANTHAPURAM.-695007 THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 04/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C).No. 2101 of 2011(O) APPENDIX -------------- PETITIONER'S EXHIBITS ---------------------------------- P1:- TRUE COPY OF PLAINT IN O.S.NO.359 OF 2009 OF I ADDL..MUNSIFF'S COURT, NEYYATTINKARA DATED 8.5.2009. P2:- TRUE COPY OF THE MEMO DATED 4.1.10 IN O.S.NO. 359/2009 OF I ADDL. MUNSIFF'S COURT, NEYYATTINKARA FILED BY ADVOCATE R.S.SURESHKUMAR. P3:- TRUE COPY OF THE COMMISSION REPORT DATED 10.2.2010 IN O.S.NO.359/2009 OF I ADDL. MUNSIFF'S COURT, NEYYATTINKARA. P4:- TRUE COPY OF THE MEMO DATED 27.2.2010 IN O.S.NO.359/2009 OF I ADDL.MUNSIFF'S COURT, NEYYATTINKARA. P5:- TRUE COPY OF THE MEMO DATED 14.3.10 IN O.S.NO.359/2009 OF I ADDL.MUNSIFF'S COURT, NEYYATTINKARA. P6:- TRUE COPY OF THE REPORT DATED 5.6.2010 IN O.S.NO.359/2009 OF I ADDL.MUNSIFF'S COURT, NEYYATTINKARA. P7:- TRUE COPY OF THE REPORT DATED 25.10.10 IN O.S.NO.359/09 OF THE I ADDL.MUNSIFF'S COURT, NEYYATTINKARA. P8:- TRUE COPY OF THE O.S.NO.177/2011 OF THE SUB COURT, NEYYATTINKARA DATED 23.5.11 P9:- TRUE COPY OF THE TAX RECEIPT DATED 2.6.93 ISSUED BY THE VILLAGE OFFICER, NEYYATTINKARA. P10:- TRUE COPY OF THE I.A.NO.6354/2010 IN O.S.NO.359/09 OF I ADDL.MUNSIFF'S COURT, NEYYATTINKARA DATED 17.8.2010. RESPPONDENT'S EXHIBITS :- NIL. //TRUE COPY// PA TO JUDGE THOMAS P. JOSEPH, J. ~~~~~~~~~~~~~~~~ O.P.(C). No.2101 of 2011 ~~~~~~~~~~~~~~~~~ Dated this the 4th day of July 2011 J U D G M E N T Petitioner is the defendant in O.S.No.177 of 2011 of the court of learned Sub Judge, Neyyattinkara challenging maintainability of that suit, under Article 227 of the Constitution. According to the petitioner, respondents 1 and 2 filed a suit for prohibitory injunction in respect of 2.3.875 acres of land comprised in re-Survey Nos. 416/13- 14-16 and 53 to 60. Petitioner filed written statement resisting the suit and contending that the property is not identifiable as claimed by respondents 1 and 2. In that case, several Advocate Commissioners attempted to identify the property but, failed. Petitioner filed W.P.(C)No.19293 of 2010 which was disposed of by this Court with certain directions to the advocate commissioner to identify the property. It is the case of petitioner that as directed by this O.P.(C). No.2101 of 2011 -: 2 :- Court yet another Advocate Commissioner inspected the property and submitted Ext.P3 report stating that commissioner was not able to identify the property for reasons stated therein. While so, respondents 1and 2 filed O.S.No.177 of 2011 before the same court, according to the petitioner in respect of the same property and claiming reliefs which respondents have sought for in O.S.No.359 of 2009 by way of amendment as well. It is pointed out that the amendment was allowed. Petitioner filed O.P.(C)No.555 of 2010 praying to set aside the order allowing amendment and this Court after hearing both parties stayed all further proceedings in O.S.No.359 of 2009. It is contended by learned counsel that in the above circumstance, O.S.No.177/2011 is not maintainable under Order II Rule 2 of the Code of Civil Procedure (for short, “the Code”). 2. The question whether the suit is maintainable and if maintainability is raised, it could be decided as a preliminary issue are matters which the trial court has to O.P.(C). No.2101 of 2011 -: 3 :- decide. As admitted by learned counsel, petitioner has not filed written statement in the suit. Learned counsel submits that petitioner is prepared to file application before learned Sub Judge challenging maintainability of the suit. It is up to the petitioner to take appropriate steps as provided under law. If question regarding maintainability is raised, it is for the trial court to decide the same as aforesaid at the appropriate stage. With the above observation, the original petition is closed. THOMAS P. JOSEPH, JUDGE. Jvt