IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 6TH SEPTEMBER 2010 / 15TH BHADRA 1932 WP(C).No. 27519 of 2010(O) ---------------------------------------- OS.206/2008 of I ADDL.SUB COURT, KOZHIKODE .................... PETITIONER(S): ----------------------- SAREENA HAMEED, W/O. ABDUL HAMEED, KACHERI AMSOM DESOM, KOZHIKODE. BY ADV. SMT.T.RESMI DAMODARAN SRI.P.P.RAJEEV LAXMAN RESPONDENT(S): -------------------------- 1. RAYARATH BABURAJ, S/O. NARAYANAN NAIR, KODIYERI AMSOM, THALASSERY TALUK - 670 101. 2. USMAN HAJI, S/O. KUNHAMU, 10/396, G.H.ROAD, NAGARAM AMSOM DESOM, KOZHIKODE - 673 502. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: kl. THOMAS P JOSEPH,J. --------------------------------------- W.P(C).NO. 27519 OF 2010 ------------------------------------------ Dated this the 6th day of September, 2010. JUDGMENT Plaintiff in O.S.No.206/2008 of the court of learned Addl. Sub Judge- I, Kozhikode is the petitioner challenging Ext.P3, order raising an additional issue as to the validity of document No.1768 of 2005 based on which petitioner claimed title and possession over the suit property. Petitioner sued for a declaration that assignment deed No.2005 of 2005 dated 21.6.2005 executed by respondent No.2 in favour of respondent No.1 is sham, null and void and not binding on petitioner, for injunction to restrain respondent No.1 from making use of the said document and trespassing into the suit property. Respondent No.1 claimed that document No.1768 of 2005 allegedly executed by one Azeez as power of attorney holder of respondent No.2 in favour of petitioner is not valid and not binding on the suit property. Respondent No.1 filed Ext.P2, application to raise additional issue concerning validity of document No.1768 of 2005, in the light of the above contention he raised in his written statement. That application was allowed by Ext.P3, order . Learned counsel for petitioner contents that there is only a technical plea in the written statement as to the validity of power of attorney in favour of Azeez and executed by respondent No.2. It is contended that there could have been no challenge to document No.1768 of 2005 at this stage on account of barred by limitation. It is also W.P(C).NO. 27519 OF 2010 2 contended that at any rate, respondent No.1 was bound to pay court fee for his claim as against document No.1768 of 2005. It is not in dispute that it is respect of the suit property that respondent No.2 is said to have executed document No.1768 of 2005 through his power of attorney holder in favour of petitioner. If that document as contended by respondent No.1 is not valid, petitioner cannot challenge assignment deed No.2005/2005 said to be executed by respondent No.2 in favour of respondent No.1. It is in the said circumstances that respondent No.1 has challenged validity of document No.1768 of 2005. If that be so, an issue arose whether document No.1768 of 2005 is valid. In that view of the matter, learned Sub Judge is correct in allowing Ext.P2, application and raising an additional issue. Question of limitation and Court fee raised by the petitioner, it is arises from the pleadings are matters which learned Sub Judge has to decide at the proper stage. There is no reason to interfere with Ext.P3, order. The writ petition fails. It is dismissed. THOMAS P JOSEPH,JUDGE. pm