IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 19TH JANUARY 2010 / 29TH POUSHA 1931 WP(C).No. 35380 of 2009(O) -------------------------- OS.51/2008 of MUNSIFF COURT, PAYYOLI .................... PETITIONER(S): --------------- PUTHANMARACHALIL RAJEEVAN, S/O. NARAYANAN, BALCK SMITH, AGED 38 YEARS, MELADY AMSOM, KANNAMKULAM DESOM (NOW AT BAHRAIN),BY POWER OF ATTORNEY HOLDER, PUTHAN MARACHALIL RAJEEVAN,S/O.KANARAN, AGED 38 YEARS, COOLIE, PAYYOLI VILLAGE, KANNAMKULAM DESOM, KOYILANDY TALUK. BY ADV. SRI.K.LAKSHMINARAYANAN SMT.SATHYASHREE PRIYA RESPONDENT(S): --------------- CHERIYAN CHALIL THARAMMAL M.T.RAVEENDRAN S/O. THEYYAN, BALCK SMITH, AGED 43 YEARS, AYANIKKAD AMSOM, DESOM, P.O. AYANIKKAD, KOYILANDY TALUK. ADV. SRI.N.M.MADHU THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.C.NO.35380 OF 2009 APPENDIX PETITIONER'S EXHIBITS: Ext.P1: True copy of the plaint OS 51/08 on the file of the Munsiff- Magistrate Court, Payyoli. Ext.P2: True copy of the written statement (counter claim) filed by the respondent in O.S.51/08 on the file of the Munsiff- Magistrate Court, Payyoli. Ext.P3: True copy of the reply statement filed by the petitioner in O.S.51/08 on the file of the Munsiff-Magistrate Court, Payyoli. Ext.P4: True copy of the agreement dated 04.10.04 executed by the petitioner and the respondent. Ext.P5: True copy of the petition IA 630/08 filed under Order 8 Rule 6(c) of Code of Civil Procedure filed by the petitioner in OS 51/08 on the file of the Munsiff-magistrate Court, Payyoli. Ext.P6: True copy of the counter filed by the respondent in OS 51/08 on the file of the Munsiff-magistrate Court, Payyoli. Ext.P7: True copy of the order dated 21.10.09 in IA 630/08 in OS 51/08 on the file of the Munsiff-Magistrate Court, Payyoli. RESPONDENT'S EXHIBITS: NIL S.S.SATHEESACHANDRAN, J. --------------------------------------------- W.P.(C) NO.35380 OF 2009 --------------------------------------------- Dated this the 19th day of January, 2010 JUDGMENT The Writ Petition is filed seeking the following reliefs: a) issue a writ of certiorari or other writ order or direction setting aside Ext.P7. b) issue a writ, order or direction declaring that the counter claim filed by the respondent in O.S 51/08 on the file of Munsiff-Magistrate Court Payyoli is barred by limitation and not maintainable therefore is to be excluded under Order 8 Rule 6(c) of the Code of Civil Procedure. Petitioner is the plaintiff in O.S.NO.51/2008 on the file of the Munsiff Court, Payyoli. Suit is one for decree of mandatory injunction directing the respondent/defendant to vacate from a shed situate in the plaint property. Admittedly, there was an agreement of sale between the parties with respect to the plaint property. According to the petitioner/plaintiff, permission was accorded to the respondent/defendant to occupy the shed in the plaint property. The agreement of sale failed to materialise and thereafter, petitioner/plaintiff has filed the present suit, seeking a decree as aforesaid for evicting the respondent/defendant from the shed under his occupation in the plaint property. Resisting the suit, respondent/defendant filed a written statement in which disputing the case W.P.(C) NO.35380 of 2009 2 of the plaintiff/petitioner, a counter claim for specific performance of the agreement of the sale was set up. He has also contended that in part performance of agreement of sale, he was put in possession of the property and ever since he is in enjoyment of that property. To the counter claim raised by the respondent/defendant in his written statement, the petitioner/plaintiff filed a reply (rejoinder) challenging its maintainability as barred by limitation and also on the ground that even if any such claim is available to the respondent/defendant, it could be entertained only by way of an independent suit. Petitioner also moved an application under Order VIII Rule 6(c) of the Civil Procedure Code for an order by the court that the counter claim is barred by limitation and it is entertainable only by way of a separate suit. After hearing both sides, the learned Munsiff declined the request made by the plaintiff/petitioner observing that the merit of the counter claim require to be investigated in the suit and it is not liable to be considered by way of a separate suit. Plea of limitation canvassed by the petitioner/plaintiff was also brushed aside by the learned Munsiff holding that the question require analysis of the disputed facts and law to enter a finding thereunder. Ext.P7 order passed so by the court is challenged by petitioner/plaintiff in the Writ Petition invoking the supervisory jurisdiction vested with the court under Article 227 of the Constitution of India. W.P.(C) NO.35380 of 2009 3 2. Notice given, the respondent/defendant has entered appearance. I heard the counsel on both sides. Though I find some force in the submissions made by the learned counsel for the petitioner/plaintiff that the case advanced by the respondent/defendant in his written statement as to extension of the period for specific performance of the agreement by an oral agreement between the parties cannot be accepted on its face value I find it may not be proper and appropriate for this court in exercise of its writ jurisdiction to enter a finding on a disputed fact which remain to be adjudicated by the court in the suit after affording reasonable opportunity to both sides to lead evidence in support of their respective case. It has been brought to my notice that the suit has already been included in the special list for trial in the month of February 2010. Having regard to the mandatory provisions covered by Order XIV, Rule 2 of the Civil Procedure Code as well, that only an issue which can be disposed of on a pure question of law unconnected with the facts disputed can be tried as a preliminary issue I find that the question of limitation canvassed by the petitioner/plaintiff to resist the counter claim, which require analysis of the disputed facts, cannot be decided on the basis of the pleadings alone without providing an opportunity to the respondent/defendant to lead evidence. So the dispute that the counter claim is barred by limitation can be examined during the trial of the suit with the other issues involved in the suit. But the court below shall consider the objections raised by the W.P.(C) NO.35380 of 2009 4 petitioner/plaintiff with respect to the entertainability of the counter claim and also the merit of the claim sought for untrammelled by any of the observations made in Ext.P7 order. There will also be a direction to the court below to dispose of the suit expeditiously, but, after affording an opportunity to both sides to lead evidence, at any rate, before the closing of the court for summer vacation. (S.S.SATHEESACHANDRAN, JUDGE) spc