IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 16TH OCTOBER 2008 / 24TH ASWINA 1930 WP(C).No. 30426 of 2008(V) -------------------------- AGAINST THE ORDER DATED 19/07/2008 IN IA 1032/2008 IN OS.276/2008 of MUNSIFF COURT, CHITTUR .................... PETITIONER(S): --------------- 1. MUHAMMED BADHRUDHEEN, S/O ISMAIL RAWTHER, AGED 50 YEARS, KANNIMARI, PATTANCHERRY VILLAGE,CHITTUR TALUK. 3. KAJA HUSSAIN, KANNIMARI, PATTANCHERRY VILLAGE, CHITTUR TALUK. 4. KABEER, KANNIMARI, PATTANCHERRY VILLAGE, CHITTUR TALUK. 5. SAID IBRAHIM, KANNIMARI, PATTANCHERRY VILLAGE, CHITTUR TALUK. 6. MUMTHAS, KANNIMARI, PATTANCHERRY VILLAGE, CHITTUR TALUK. 7. THAJNNEESA, KANNIMARI, PATTANCHERRY VILLAGE, CHITTUR TALUK. 2 8. ANFARNNEESA, KANNIMARI, PATTANCHERRY VILLAGE, CHITTUR TALUK. BY ADV. SRI.K.ABDUL JAWAD SRI.U.MUHAMMED MUSTHAFA RESPONDENT(S): --------------- 1. MUHAMMED BAKKAR, S/O MASTHAN,MOOLAKKADA, KOZHIPATHY VILLAGE, CHITTUR TALUK. 2. NOORMUHAMMED, KANNIMARI, PATTANCHERRY VILLAGE, CHITTUR TALUK. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = = W.P.(c).No.30426 of 2008 = = = = = = = = = = = = = = Dated this the 16 th day of October, 2008 JUDGMENT The writ petitioner is the 1st defendant in O.S.No.276 of 2008 on the file of the Munisiff's Court, Chittur. The said suit is filed by the 1st respondent herein for a perpetual injunction restraining the 8 defendants therein from trespassing upon the plaint schedule property which was allegedly agreed to be sold to the plaintiff by the defendants for consideration by way of an un-registered agreement dated 28.5.07. 2. According to the petitioner, the suit has been filed as a shortcut for filing a suit for specific performance of the said agreement and in view of the fact that the agreement is an un- registered agreement, Section 53(A) of the Transfer Property Act after its amendment in the year 2001 cannot be taken advantage of by the plaintiff to protect his possession. 3. The learned counsel for the petitioner would contend that the suit cannot be maintained in view of Section 41(h) of the Specific Relief Act and that since the remedy of the plaintiff W.P.(c).No.30426 of 2008 2 is to file a suit for specific performance of the contract which is an equally efficacious remedy, the present suit for injunction simplicitor will not lie. He had therefore raised the question of maintainability of the suit which, according to the petitioner, ought to have been decided as a preliminary issue. The petitioner would also contend that while disposing of the application for temporary injunction as per Ext.P1 order dated 19.7.08, the trial court had virtually upheld the defendant's contention that Section 53(A) of the Transfer Property Act does not go to the rescue of the plaintiff and that his remedy is to sue for specific performance of the contract which is an equally efficacious remedy available to him. However, a temporary injunction was granted for 15 days to enable the plaintiff to file a suit for specific performance. But instead of filing a separate suit the plaintiff challenged the said order by filing an appeal against Ext.P1 order. The petitioner, therefore seeks a declaration that O.S.No.276 of 2008 filed by the 1st respondent herein before the Munsiff's court is not maintainable and also to direct the Munsiff's Court to consider the maintainability of the suit as a preliminary issue and to dispose of the suit in two W.P.(c).No.30426 of 2008 3 months. 4. The learned counsel for the petitioner would submit that since the agreement for sale is admittedly an un-registered agreement, the fact that Section 53A of the Transfer Property Act cannot be pressed into service by the plaintiff is an undisputed fact and therefore the plaintiff is debarred from protecting his possession under the un-registered document by recourse to Section 53(A) of the Transfer Property Act. Instead of working out his remedies by filing a suit for specific performance the present suit filed by him for injunction is not maintainable. The petitioner having raised the question of maintainability before the Court, that court is bound to consider the same as a preliminary issue in view of Order XIV Rule 2(2) C.P.C. 5. Just because one of the defendants has raised a contention regarding the maintainability of the suit, it does not obligate the court to frame an issue regarding the maintainability and decide it as a preliminary issue. Even under Order XIV Rule 2(2) if the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, the court W.P.(c).No.30426 of 2008 4 is given the discretion to decide that issue if it relates to the jurisdiction of the court or if it relates to bar to the suit created by any law. The expression used is “it may try that issue”. This is not to say that there is a statutory mandate on the court to try every such issue as a preliminary issue. The position is not improved by the decision in Thomas Sen v. Parameswaran (2008(2) KLT 263) which was a decision pertaining to an issue regarding res judicata which was put forward on the basis of undisputed facts. Hence, I am not inclined to issue any direction to the court below to frame the issue regarding the maintainability of the suit and decide it as a preliminary issue. It is open to the court to do so if the facts of the case warrant such a course. This writ petition is accordingly dismissed. Dated this the 16 th day of October, 2008. V. RAMKUMAR, JUDGE sj