IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 26TH OCTOBER 2010 / 4TH KARTHIKA 1932 WP(C).NO. 26496 OF 2010(O) ----------------------------------------- OS.382/2003 OF M.C.,PATHANAMTHITTA .................... PETITIONER(S): --------------------- THE MYLAPRA SERVICE CO-OPERATIVE BANK LIMITED NO.639, MYLAPRA, PATHANAMTHITTA DISTRICT, REPRESENTED BY ITS SECRETARY. BY ADV. SRI.P.V.BABY SRI.A.N.SANTHOSH RESPONDENT(S): ------------------------ 1. RAJAGOPALAN NAIR, PUTHENPARAMBIL HOUSE, PALAMAROOR MURI, PRAMADOM VILLAGE, PATHANAMTHITTA DISTRICT, PIN - 689 641. 2. SARASAMMA NAIR, W/O.M.P.BHASKARAN NAIR, MELEDATHU BINDU BHAVAN, AZHOOR MURI, PATHANAMTHITTA VILLAGE, KOZHENCHERRY TALUK PIN - 689 645. ADV. SRI.PHILIP M.VARUGHESE FOR R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. ==================================== W.P(C) No.26496 of 2010 ==================================== Dated this the 26th day of October, 2010 J U D G M E N T Defendant No.2 in O.S. No.382 of 2003 of the court of learned Munsiff, Pathanamthitta is the petitioner before me. He is aggrieved as learned Munsiff has not complied with the direction contained in Exts.P19 and P24, judgments passed by this Court. 2. According to the petitioner, forty cents of land which belonged to one Subramania Pillai and others was subject to a mortgage in favour of petitioner and later, of the said forty cents, Subramania Pillai and others agreed to sell ten cents in favour of respondent No.1. In the meantime Subramania Pillai and others failed to discharge liability under the loan and that resulted in an award passed by the Co-operative Department. While so respondent No.1 in whose favour an agreement for sale in respect of the ten cents was allegedly executed filed O.S.No.652 of 1999 and according to the petitioner obtained a decree in collusion with Subramania Pillai and others. Based on the award passed by the Department, forty cents was sold in auction by the sale officer W.P(C) No.26496 of 2010 -: 2 :- and the sale was confirmed in favour of the petitioner. While so respondent No.2 filed O.S. No.382 of 2003 claiming to be an assignee from respondent No.1 for a declaration of her right over the ten cents and for consequential relief of injunction. Petitioner resisted the suit contending that the suit itself is not maintainable since it is barred under Section 106 of the Co-operative Societies Act (Kerala). Petitioner was aggrieved as no issue was raised regarding maintainability of the suit and filed W.P(C) No.5534 of 2008. This Court by Ext.P19, judgment dated June 13, 2008 directed learned Munsiff to consider whether based on the pleadings of petitioner issue regarding maintainability arose and to frame an additional issue accordingly and permitted petitioner to move learned Munsiff to frame additional issue in case an issue regarding maintainability had not already been framed. Accordingly petitioner filed a petition and based on that, an additional issue was framed regarding maintainability of the suit. Though in Exts.P19 this Court directed that petitioner is also at liberty to file application to hear the maintainability of the suit as preliminary issue and such an application was filed learned Munsiff was not in a mood to do so. Petitioner again filed W.P(C) No.21704 of 2010 and that petition was disposed of by Ext.P24, W.P(C) No.26496 of 2010 -: 3 :- judgment dated July 07, 2007 which directed that if an issue regarding maintainability of the suit has been raised there is no reason to think that learned Munsiff will not comply with the direction contained in Ext.P19, judgment. Grievance of petitioner is that learned Munsiff was not inclined to hear the issue regarding maintainability of the suit as a preliminary issue. Hence this Original Petition. 3. I have heard counsel on both sides. 4. While disposing of W.P(C) No.21074 of 2010 this Court directed that it is open to the petitioner to request learned Munsiff to frame an additional issue regarding maintainability of the suit as directed in Ext.P19 and that if such an issue is raised there is no reason to think that the learned Munsiff will not comply with the direction contained in Ext.P19. It is accordingly that petitioner filed I.A.No.1609 of 2010. That application has been disposed of by the learned Munsiff vide Ext.P26, order stating that under Order 14 Rule 2 of the Code of Civil Procedure issue regarding maintainability of the suit could be decided as a preliminary issue only if it involves a question of law alone and that the issue in the present case involves question of fact and law. Application was accordingly dismissed. W.P(C) No.26496 of 2010 -: 4 :- 5. On going through Ext.P26, order passed by the learned Munsiff it is not clear what exactly is the facts involved in the case so that the issue regarding maintainability could not have been decided as a preliminary issue. However, I am not interfering with the matter at this stage though I am not very much impressed by the way learned Munsiff has passed Ext.P26, order since it is submitted that recording of evidence is over. I am not directing learned Munsiff to hear the issue regarding maintainability of the suit at this stage as that would only further protract the litigation. But I remind the learned Munsiff of his obligation to carry out directions issued by the superior courts. Resultantly, this Writ Petition is closed with a direction to the learned Munsiff to dispose of the suit as expeditiously as possible entering a finding as to the maintainability of the suit as well. THOMAS P. JOSEPH, JUDGE. vsv