IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 24TH JANUARY 2008 / 4TH MAGHA 1929 WP(C).No. 22747 of 2007(G) -------------------------- OS.330/2004 of MUNI-MAGI.COURT,THODUPUZHA .................... PETITIONER: IST DEFENDANT IN OS. NO.330/04 OF THE MUNSIFF'S COURT, -------------------- THODUPUZHA TALUK. JOM C. MICHAEL, S/O. MICHAEL, RESIDING AT CHAMAKALAYIL HOUSE, MUTTOM KARA, MUTTOM VILLAGE, THODUPUZHA TALUK. BY ADV. SRI.K.DIVAKARAN NAIR RESPONDENT: PLAINTIFF IN OS. NO.330/2004. ----------------------- N.U. JOHN, S/O. ULAHANNAN, NEDUMKALLEL HOUSE, MUTHALAKODAM KARA, THODUPUZHA VILLAGE, THODUPUZHA TALUK. BY ADV. SMT.DAISY A.PHILIPOSE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.22747/2007 APPENDIX PETITIONERS EXHIBITS EXT.P1:- COPY OF THE PLAINT IN OS. 330/04 OF THE MUNSIFF'S COURT, THODUPUZHA. EXT.P2:- COPY OF THE ORDER IN OS. NO.144/04 OF DO. DO. EXT.P3:- COPY OF THE COMMISSION APPLICATION IN EXT.P1 SUIT. EXT.P4:- COPY OF THE DT. 6/7/07 SENT BY THE SY. SUPERINTENDENT TO THE PETITIONER INTIMATING THAT RE-SURVEY IS NOT COMPLETED. /TRUE COPY/ P.A. TO JUDGE tss M.N. KRISHNAN, J. = = = = = = = = = = = = = = W.P.C. NO. 22747 OF 2007 = = = = = = = = = = = = = = = Dated this the 24th day of January, 2008. J U D G M E N T This writ petition is filed with a prayer to stay the execution of the Commission order in O.S.330/04 of the Munsiff's Court, Thodupuzha till resurvey is completed. The suit is one for a permanent injunction to restrain the defendants from converting the plaint a schedule paddy field into other cultivations or building plots by filling the paddy field with earth and also for a mandatory injunction to demolish and remove the illegally built culvert over the plaint B schedule thodu vested in Thodupuzha Municipality. 2. The suit is very strongly resisted by the respondent on the ground that the plaintiff has no cause of action, the plaintiff has no interest and the civil Court is used to file a suit as if it is a public interest litigation, therefore the suit itself is not maintainable. The learned counsel for the writ petitioner would submit before me that if it relates to a W.P.C 22747 OF 2007 -:2:- public nuisance then S.91 CPC contemplates certain procedural aspects. So whatever it may be, there is a contention raised by the defendant in the suit challenging the very maintainability of the suit contending that it is a public interest litigation and if it is to be a civil suit it will come within the four parameters of Section 91 of CPC and as there is no substantial compliance of the mandate of that section the suit is not maintainable. This is a preliminary point which requires consideration. 3. I make it clear that I am not entering into the merits or demerits of the case since there is contention that the very inception of the suit is defective it is desirable that the Court consider it as a preliminary issue and dispose of the matter after hearing both sides after entering into a finding regarding the maintainability. If the Court finds that it is maintainable then the Court is at liberty to pass further orders in accordance with law. Therefore, for the time being, the order under challenge is set aside and I direct the Court below to keep that interim application pending and then to W.P.C 22747 OF 2007 -:3:- consider it again after the disposal of the preliminary issue in the suit. The Court may try to dispose of the question of maintainability as a preliminary issue within a time frame of six weeks from the date of receipt of a copy of the order. The writ petition is disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/-