IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 24324 of 2009(O)
1. CHIDAMBARAM PILLAI,
... Petitioner
2. AYYAPPAN PILLAI, S/O.KRISHNA PILLAI,
3. K.SASI, S/O.PADMANABHA PILLAI,
4. SAJEEV, S/O.PADMANABHA PILLAI,
5. AJITH, S/O.PADMANABHA PILLAI,
6. LAKSHMY AMMA, W/O.PADMANABHA PILLAI,
Vs
1. MATHEW, AGED 58 YEARS,
... Respondent
2. K.K.CHANDRAN PILLAI,
For Petitioner :SRI.A.S.SAJUSH PAUL
For Respondent :SRI.S.JAMES VINCENT
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :18/12/2009
O R D E R
S.S.SATHEESACHANDRAN, J.
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W.P.(C).NO.24324 OF 2009 (O)
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Dated this the 18th day of December, 2009
J U D G M E N T
Petitioners are defendants 2 to 7 in O.S.No.40 of 2008 on
the file of the Munsiff Court, Thodupuzha. 1st respondent is
the plaintiff and the 2nd respondent is the 1st defendant in the
suit. Suit is one for declaration of right of prescriptive
easement, injunction and for damages. Suit claim was
resisted by the defendants filing a written statement, in which
among other contentions, maintainability of the suit was also
challenged as barred by limitation. An application was moved
by the defendants to consider the bar of limitation as a
preliminary issue. The learned Munsiff disposed that
application vide Ext.P7 order holding that question can be
considered with other issues in the trial of the suit. Ext.P7 is
the copy of that order. An application filed by the plaintiff for
ascertaining certain matters by appointing an Advocate
WPC.24324/09 2
Commissioner, which was objected to by the defendants was
also allowed by the court. Ext.P6 is the copy of that order.
Propriety and correctness of Exts.P6 and P7 orders are
challenged in the writ petition invoking the supervisory
jurisdiction vested with this Court under Article 227 of the
Constitution of India.
2. I heard the counsel on both sides. From the
submissions made and taking note of the facts and
circumstances presented with reference to Exts.P6 and P7
orders challenged in the writ petition and other exhibits
produced also, I find there is no impropriety or illegality in the
orders passed by the learned Munsiff relegating the
consideration of the question of limitation along with other
issues arising for adjudication in the suit. Whether the suit is
barred by limitation or not is a matter to be looked into at this
stage only with reference to the allegations raised in the
plaint. When facts are disputed and issues are raised,
necessarily, an issue of limitation emerging from such
disputed facts can be gone into only after taking evidence. An
issue can be decided preliminarily as contemplated under
Order XIV Rule 2 of the Code of Civil Procedure if only such
WPC.24324/09 3
an issue can be decided without taking evidence. In
Thiruvambadi Rubber Co. Ltd. v. Damodaran Nair (1984
KLT 586), it has been stated in unequivocal terms that “it is
only an issue of law which goes to the root of the suit and
capable of being decided without recording evidence that
must be tried as a preliminary issue in the first instance under
Rule 2 of Order XIV of the CPC.” So much so, in the given
facts of the case, I find the learned Munsiff was right in
holding that the issue of limitation raised by the defendants
can be considered with other issues in trial. So far as the
challenge raised against Exts.P6 and P7 orders appointing an
Advocate Commissioner for conducting local inspection and
measuring out the property and ascertaining such other
matters, I find that it cannot also be impeached where it is
seen that the defendant among other contentions had disputed
the identity of the property as well. In that view of the matter,
I find no interference with Exts.P6 and P7 order is called for
and the writ petition is closed.
S.S.SATHEESACHANDRAN
JUDGE
prp