IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 19TH AUGUST 2011 / 28TH SRAVANA 1933 CRP.No. 69 of 2011() -------------------- AGAINST THE ORDER DATED 08/12/2010 IN IA 459 /2010 IN OS.563/2009 of PRINCIPAL MUNSIFF'S COURT,IRINJALAKUDA .................... REVN. PETITIONER(S): PETITIONER/DEFENDANT ----------------------------------------- PAULSON, AGED 43 YEARS, S/O.THEKKUMPEEDIKA DEVASSY, KONNIKKARA DESOM, THRIKKUR VILLAGE, MUKUNDAPURAM TALUK. BY ADVS. SRI.P.SANTHOSH (PODUVAL) SMT.R.RAJITHA RESPONDENT(S): RESPONDENT/PLAINTIFF ----------------------------------- ANTHONY, AGED 69 YEARS, S/O.THEKKUMPEEDIKA KOCHAPPU @ OUSEPH, KONIKKARA DESOM,THRIKKUR VILLAGE PO, MUKUNDAPURAM TALUK, PIN-680314. BY ADV. SRI.T.N.MANOJ THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 19/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: AMG THOMAS P.JOSEPH, J. ==================================== C.R.P. No.69 of 2011 ==================================== Dated this the 19th day of August, 2011 O R D E R Order dated December 08, 2011 on I.A. No.459 of 2010 in O.S. No.563 of 2009 of the court of learned Principal Munsiff, Irinjalakuda is under challenge. Respondent filed the suit against petitioner for fixation of the northern boundary of plaint A schedule property belonging to the respondent and plaint B schedule, property belonging to the petitioner. Boundary is sought to be fixed in between the said properties. Petitioner filed written statement contending, inter alia, that the suit is not maintainable in view of dismissal of an earlier suit – O.S. No.1035 of 2008. According to the petitioner, that suit was filed against petitioner and a few others who own property adjoining property of respondent for fixation of the northern and southern boundaries of plaint A schedule and for other reliefs. Petitioner contended in the written statement that without any change of circumstance the present suit is barred. Petitioner filed I.A. No.459 of 2010 to frame an issue regarding maintainability of the suit. That application was disposed of by the impugned order. It is contended by learned counsel that in view of Order XXIII Rule 1(4) C.R.P. No.69 of 2011 -: 2 :- of the Code of Civil Procedure (for short, “the Code”) the present suit is not maintainable since the earlier suit was dismissed as not pressed and no change of circumstance is pleaded in the present plaint to overcome the said bar. According to the learned counsel the suit being in respect of the same subject matter and there being no fresh cause of action disclosed by the averments in the plaint as also the report of the Advocate Commissioner, court below ought to have decided the issue regarding maintainability as a preliminary issue and found in favour of petitioner. 2. Learned counsel for respondent contended that there are sufficient averments in the plaint so that the bar under Order XXIII Rule 1(4) of the Code is not attracted. The plaint states the circumstances under which the earlier suit was dismissed as not pressed; following a settlement between the parties that the properties will be measured with reference to the respective title deeds and boundaries will be fixed but petitioner resiled from that settlement and attempted to trespass into the property again which necessitated institution of the present suit. 3. On going through the order under challenge I do not find any finding entered by the learned Munsiff as to whether the suit is maintainable or not in view of the bar pleaded by petitioner. On the other hand, what the learned Munsiff had done is only to C.R.P. No.69 of 2011 -: 3 :- frame an additional issue as to whether the suit is not maintainable in the light of dismissal of O.S. No.1035 of 2008 and in paragraph 6 of the order it is observed that the question whether the present suit is barred under Order XXIII Rule 1(4) of the Code cannot be considered as it is a pure question of law since it requires evidence as to the nature of disposal of O.S. No.1035 of 2008. 4. Having heard counsel on both sides it appears to me to be appropriate that learned Munsiff decided the issue after recording evidence in the suit and also along with other issues. Resultantly, Civil Revision Petition is disposed of directing learned Principal Munsiff, Irinjalakuda to decide the issue as to maintainability if it arises from pleadings along with other issues after recoding evidence in the case. THOMAS P. JOSEPH, JUDGE. vsv