IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN FRIDAY, THE 14TH NOVEMBER 2008 / 23RD KARTHIKA 1930 W.P(C).No. 16474 of 2008(J) ---------------------------------- OS.124/2008 OF MUNSIFF COURT, CHALAKUDY ........................... PETITIONERS : --------------------- 1. VARGHESE. S/O. MALIYEKKAL VEETTIL KOONAN ANTONY,PUTHEN CHIRA VILLAGE AND DO. DESOM, MUKUNDAPURAM TALUK. 2. PAUL,S/O. DO..DO BY ADV. SRI.K.JAYAKUMAR SRI.P.B.KRISHNAN SMT.GEETHA P.MENON RESPONDENT : ------------------------ PAUL, S/O. EDAKKALATHOOR VEETTIL DEVASSY POTTA VILLAGE, POTTA DESOM, MUKUNDAPURAM TALUK. ADV. SRI.K.B.PRADEEP THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P(C).No. 16474/ 2008 APPENDIX PETITIONERS' EXHIBITS: EXHIBIT P1 : DATED 19/3/2008, TRUE COPY OF THE PLAINT IN O.S. NO.124/2008, MUNSIFF'S COURT, CHALAKKUDY. EXHIBIT P2 : DATED 27/03/2008, TRUE COPY OF THE WRITTEN STATEMENT AND COUNTER CLAIM IN O.S. NO.124/2008 ON THE FILE OF THE MUNSIFF'S COURT, CHALAKUDY. EXHIBIT P3 : DATED 27/03/2008, TRUE COPY OF THE APPLICATION I.A. NO.646/2008 IN O.S. NO.124/2008 MUNSIFF'S COURT, CHALAKUDY FILED BY THE PETIITONERS. EXHIBIT P4 : DATED 2/04/2008, TRUE COPY OF THE COUNTER- AFFIDAVIT IN I.A. NO.646/2008 IN O.S. NO.124/2008 FILED BY THE RESPONDENT. EXHIBIT P5 : DATED 2/04/2008, TRUE COPY OF THE ORDER IN I.A. NO. 646/2008 IN O.S. NO.12 OF 2008, MUNSIFF'S COURT, CHALAKUDY. /TRUE COPY/ P.A. TO JUDGE scm K.P. BALACHANDRAN, J. ------------------------------------- W.P(c) No. 16474 of 2008 ------------------------------ Dated this the 14th day of November, 2008 JUDGMENT The defendants in O.S. No.124 of 2008 on the file of the Munsiff's Court, Chalakudy are the petitioners, and the prayer in this writ petition is to set aside the observations made and findings entered in Exhibit P5 order on I.A. No. 646 of 2008 on the maintainability of the suit and to clarify that the Munsiff's Court, Chalakudy will have to raise issues in the suit first and consider as preliminary issue the question of maintainability of the suit, O.S. No.124 of 2008 on its file. Exhibit P1 is the plaint in the O.S. No.124 of 2008. The prayer in the suit is to restrain the defendants, their men and agents from forcibly evicting the plaintiff and his family from the plaint schedule property without resorting the due process of law and from committing waste therein, by a decree of Permanent prohibitory Injunction. The property is having an extent of 29 cents with a building therein. The defendants therein filed I.A. No.646 of 2008 in the said suit under Order 14 Rules 5 and 6 of the Code of Civil Procedure to have the question as to W.P(c) No. 16474 /2008 2 whether the suit is maintainable, being considered as preliminary point. 2. The trial court vide Exhibit P5 order found that though petitioners raised a question regarding the maintainability on the ground that plaintiffs have executed a sale deed in favour of the first defendant, the interpretation of the documents can be had only at the time of evidence, as oral and other evidence are also to be taken into account in this matter and that being a suit of civil nature, the suit is maintainable under Section 9 of the C.P.C. It does not mean that issue regarding the maintainability of the suit will not be raised in this suit. The parties can meet at trial as regards the maintainability of the suit on the evidence even in the nature of order passed by the trial court. The trial court while considering the question of maintainability at the initial stage of application filed by the petitioners/defendants had necessarily to discuss the matters involved in the suit, for the purpose of answering the question of maintainability. When on the request of the petitioners themselves vide I.A No. 646 of 2008 the question of maintainability was considered and order is passed vide Exhibit P7, they cannot now urge that observations made and finding entered in W.P(c) No. 16474 /2008 3 Exhibit P5 on the maintainability of the suit has to be set aside. Even under the tenor of Exhibit P5 order, it does not preclude the issue being raised regarding the maintainability of the suit and that being considered on evidence adduced in the case. Hence, the relief prayed for in this writ petition by the petitioners is uncalled for and does not require to be granted. This Writ Petition is dismissed. K.P. BALACHANDRAN, JUDGE scm