IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 14TH DECEMBER 2009 / 23RD AGRAHAYANA 1931 CRP.No. 96 of 2009() -------------------- ORDER DT. 6.12.08 IN OS.328/2008 of PRL. MUNSIFF COURT.,ERNAKULAM .................... REVN. PETITIONERS/DEFENDANTS 1 TO 3: --------------------------------------- 1. VARKEY, S/O.UTHUPPU, AGED 70 YEARS, CHAKKYATHU MOODU VEEDU, THURAVUR P.O., VIA.ANGAMALY. 2. ELSY, W/O.A.L.ANTONY, AGED 67 YEARS, KOCHAPPALI ANAMTHURUTHIL, CHILAVANNUR, KADAVANTHARA, KOCHI-20. 3. JOBY, S/O.A.L.ANTONY, AGED 40 YEARS, KOCHAPPALLI ANAMTHURUTHIL, CHILAVANNUR, KADAVANTHARA, KOCHI-20. BY ADV. SRI.JIMMY JOHN VELLANIKARAN RESPONDENTS/PLAINTIFFS 1 TO 5 & 4TH DEFENDANT: --------------------------------------------- 1. MARIYAMMA,AGED 78 YEARS, W/O.LATE CHACKO ANAMTHURUTHIL, DOOR NO.31/1826, DROUPATHI LANE, NEAR S.K.APARTMENT, THAMMANAM P.O., KOCHI-32. 2. A.C.JOSEPH ALIAS BABU, AGED 61 YEARS, S/O.CHACKO, KOCHAPPALLY, ANAMTHURUTHIL, C.C.NO.28, CHILAVANNUR, KADAVANTHRA, KOCHI-20. 3. MARY, AGED 49, D/O.LATE CHACKO, DOOR NO.31/1826, NEAR S.K.APARTMENT, THAMMANAM P.O KOCHI-32. 4. ELSY, AGED 53 YEARS, D/O.LATE CHACKO, AND W/O.JOSE, PALATHINKAL, PARADISE ROAD, POONITHURA P.O., VYTTILA. 5. JOHN, AGED 45, S/O.LATE CHACKO, DOOR NO.31/1826, NEAR S.K.APARTMENT, THAMMANAM P.O., KOCHI-32. CRP 96/09 6. A.L.PAUL, S/O.LONAPPAN, KOCHAPPALLI ANAMTHURUTHIL, PALARIVATTOM, KOCHI-682 025, VELORVATTOM, CHERTHALA-688 524. ADV. SRI.V.L.SHENOY FOR R1-5 SRI.L.JAYAWANTH FOR R1-5 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 14/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON I.A.NOS.375 OF 2009 & 3213 OF 2009 IN CRP NO.96 OF 2009 CLOSED 14.12.2009 SD/- S.S.SATHEESACHANDRAN, JUDGE. S.S. SATHEESACHANDRAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - C.R.P. No.96 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 14th December, 2009 ORDER Petitioners are the defendants 1 to 3 in O.S.No.328 of 2008 on the file of the Principal Munsiff Court, Ernakulam, and the respondents are the plaintiffs 1 to 5 and the 4th defendant in the suit. Suit is one for perpetual prohibitory injunction. Petitioners/defendants 1 to 3 in their written statements, among other contentions, disputing the entitlement of the plaintiffs for the decree of injunction contended that the suit is bad for nonjoinder of parties and it is also barred by res judicata. The learned Munsiff considered the challenges relating to res judicata and also nonjoinder of parties as preliminary issues. The order passed thereof is challenged in the revision. 2. At the time of hearing, learned counsel for the petitioners submitted that it is not against the order as such the challenge is raised, but, in respect of the entry made in the proceedings paper of the suit whereunder it is stated to have been recorded that the issues are decided against the defendants. In fact, in the order, both sides concede, the issues have not been determined finally and conclusively. So far as the issue of res judicata is concerned, the learned Munsiff has observed that no material was produced to establish that plea by the defendants. Needless to point out, an issue CRP No.96/09 - 2 - of res judicata raised can be determined only after recording evidence, and not as a preliminary issue. Issues which can be decided without recording evidence alone can be determined as preliminary issue as envisaged under Order 14 Rule 2(2) of the Code of Civil Procedure. In Thuruvambadi Rubber Co. Ltd. v. Damodaran Nair (1984 KLT 586) this court held that it is only an issue of law which goes to the root of the suit and capable of being decided without recording evidence can be tried as preliminary issue under Rule 2 of Order 14 of the C.P.C. So far as the other issue regarding nonjoinder of parties, having regard to the fact that the suit is one for perpetual prohibitory injunction, the relevance of such an issue ought to have been considered by the court below. At any rate, since the court has not decided the above issues one way or other, there cannot be any grievance to the petitioners/defendants 1 to 3. By inadvertance, in the proceedings paper, if it has been recorded that the issues have been decided against the defendants, they can bring it to the notice of the court for rectification. Even otherwise, the court is expected to consider the issues and pass appropriate orders thereof as they have been left undecided in the impugned order. Revision is disposed as indicated above. srd S.S. SATHEESACHANDRAN, JUDGE CRP No.96/09 - 3 -