IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 5TH OCTOBER 2009 / 13TH ASWINA 1931 CRP.No. 57 of 2009 -------------------- AGAINST THE ORDER DATED 28/08/2008 IN IA.2795/2008 IN OS.255/2006 of ADL.SUB COURT, THALASSERY .................... REVN. PETITIONERS/PETITIONERS/RESPONDENTS 1 & 2/PLAINTIFFS: ------------------------------------------------------------- 1. DR.A.N.THOMAS,AGED 50, S/O.T.NAINAN, KRIPALAYAM, JOHN HILL ROAD, KANNUR-2. 2. DR.T.K.CHANDRASEKHARAN, AGED 54, S/O.MADHAVAN,NEAR MANDAPAN, PUTHIYATHERU, KANNUR. BY ADV. MR.V.RAJENDRAN (PERUMBAVOOR) MR.GEORGE VARGHESE KIZHAKKAMBALAM RESPONDENTS/PETITIONER AND RESPONDENTS 3 TO 9/DEFENDANTS: ----------------------------------------------------------------------------- 1. THE INDIAN MEDICAL ASSOCIATION,KERALA STATE BRANCH REP.BY ITS SECRETARY,DR.R.RAMESH, DEEPANJALI, THIRUVANGAD, TELLICHERY. 2. THE INDIAN MEDICAL ASSOCIATION, IMA HOUSE, INDRAPRESTHKA MARG, NEW DELHI-110002, REP.BY ITS HONARARY SECRETARY, GENERAL DR.VINAY AGGARWAL. 3. THE INDIAN MEDICAL ASSOCIATION,KANNUR BRANCH,IMA BUILDING TALAP, KANNUR, REP.BY DR.NANDAKUMAR,S/O.KUNJIRAMAN NAIR,DHANYA SREE, TALAP, KANNUR,CHAIRMAN ADHOC COMMITTEE. 4. DR.V.P.DEVADAS, RAJESWARI HOSPITAL, TALAP, KANNUR. 5. DR.SURESHK BABU, S/O.NANU, BODY SCAN, TALAP, KANNUR. (CNTD..2) CRP.No. 57 of 2009 ::2:: 6. DR.NANDAKUMAR,S/O.KUNJIRAMAN NAIR, DHANYA SREE, TALAP, KANNUR. 7. DR.SANJIV MALIK,PRESIDENT, IMA HOUSE, INDRAPRESTHA MARG, NEW DELHI-110002. 8. DR.JOSEPH MANI, S/H./MEDICAL CENTRE, NAGAMPADOM, KOTTAYAM. ADV. MR.P.U.SHAILAJAN FOR R4 MR.VPK.PANICKER FOR R1 MR.SAJEEVU MATHEW FOR R1 MS.RUBY K.JOSE FOR R8 MS.RENU K.MANI FOR R8 MR.SAJEEVU MATHEW FOR R2 THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 05/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ----------------------------------- C.R.P.No.57 of 2009 - E --------------------------------- Dated this the 5th day of October, 2009 O R D E R Revision is directed against the order dated 28.8.2009 passed by the learned Sub Judge, Thalassery. Revision petitioners are the plaintiffs in the above suit which was filed seeking a declaration that the amendments proposed to the bye laws of the association dated 7.4.2002 are illegal and ab initio void and for other reliefs. Second defendant, association, filed a written statement resisting the suit claim in which among other contentions it was contended that in a previous suit filed in a representative capacity by some others the amendment to the bye laws of the association was also considered by another competent civil court and that decision has become final and conclusive. The second defendant moved a separate application for dismissal of the suit challenging its maintainability on various grounds including the plea of res judicata. Learned Sub Judge after hearing both sides allowed that application vide the order impugned in the present revision. 2. I heard the counsel on both sides. C.R.P.No.57 of 2009 - E 2 3. Inviting my attention to sub rule (2) of Rule 2 of Order XIV, learned counsel for the petitioners submitted that the issue relating to res judicata is not a question which can be tried as a preliminary issue as covered by the above rule and necessarily and inevitably the issue of res judicata has to be considered, according to the counsel only after taking evidence. Reliance is placed on Thiruvambady Rubber Company Limited v Damodaran Nair (1984 KLT 586) and Mary v. Mathew Joseph (1992(1) KLT 227) to contend the issue of res judicata does not fall under sub rule 2 of Rule 2 of Order XIV of the Code of Civil Procedure. On the other hand, learned counsel appearing for the first respondent/second defendant in the suit contended that the maintainability of the suit was challenged on other grounds as well including the bar of limitation. Court below while passing the impugned order, according to the counsel, did not advert to the plea raised with respect to the maintainability of the suit as barred by limitation. Proposed amendment to the bye laws was in the year 2002 and the declaration was sought under the present suit after a span of four years, submits the counsel to contend that the declaration so sought for is barred by limitation. C.R.P.No.57 of 2009 - E 3 4. Considering the submissions made by the counsel on both sides with reference to the facts and circumstances presented and also the order under challenge, I find it is not proper and appropriate for this Court to express any view, leave alone any finding, on the disputed questions as to whether the trial of the suit is barred by res judicata or on its maintainability as barred by limitation. However, perusing the impugned order it has to be stated that learned Sub Judge has not considered the question whether the issue of res judicata if at all raised in the suit can be considered as a preliminary issue with reference to sub rule (2) of Rule 2 of Order XIV of the Code of Civil Procedure. It is seen from the impugned order the court below relying on a decision of the Apex Court has also concluded that the reliefs claimed in the suit have become infructuous, apart from entering a finding on the issue of res judicata. Res judicata only bars the trial of the suit but not the institution or its entertainability. The question whether trial of the suit is barred by res judicata necessarily demands an enquiry on that question with reference to evidence. The evidence adduced thereof, needless to point out, must relate to the decision rendered by a competent civil C.R.P.No.57 of 2009 - E 4 court with respect to an issue earlier and that decision must be final and conclusive barring fresh trial. When evidence is to be recorded for entering a decision as spelt out in the two decisions referred to earlier it cannot be considered and decided preliminary. So much so, the impugned order passed by the court below cannot be sustained. However, I make it clear that if the first respondent in his written statement has raised a plea of limitation that question has necessarily to be gone into by the court because Section 3 of the Limitation Act bars the institution of the suit as well after the time prescribed. So much so, irrespective of setting aside the impugned order, if a plea of limitation is canvassed by the defendant and it is borne out by records, necessarily the court has to enter finding thereof and that can be done even preliminarily before going to the trial of the case. I make it clear that the observations of the learned Sub Judge with reference to the finding entered that the suit has become infructuous cannot be approved, as the decision entered thereof preliminarily without going into the disputed question appears to be incorrect. C.R.P.No.57 of 2009 - E 5 Subject to the observations made above, setting aside the impugned order the revision is disposed directing the court below to dispose the suit in accordance with law. S.S.SATHEESACHANDRAN, JUDGE. bkn/-