High Court Kerala High Court

Dr.P.V.Joseph vs Prasad P.Varghese on 26 May, 2008

Kerala High Court
Dr.P.V.Joseph vs Prasad P.Varghese on 26 May, 2008
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 15512 of 2008(V)


1. DR.P.V.JOSEPH, PUKKENNUEL, PUTHUPPADY
                      ...  Petitioner

                        Vs



1. PRASAD P.VARGHESE
                       ...       Respondent

                For Petitioner  :SRI.ELDHOSE ELIAS

                For Respondent  : No Appearance

The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR

 Dated :26/05/2008

 O R D E R
                      M.SASIDHARAN NAMBIAR, J.

                         -------------------------------

                         W.P.(C) No.15512 of 2008

                         -------------------------------

                       Dated this the 26th May, 2008.

                              J U D G M E N T

Petitioner is the defendant in O.S.No.338/2007, on the

file of the Munsiff Court, Muvattupuzha. He filed I.A.No.3056/2007, an

application to hear the question of maintainability of the suit as a

preliminary issue. Under Ext.P18 order, learned Munsiff disposed the

same, holding that as the issue involved is a mixed question of fact

and law, it cannot be decided as a preliminary issue. It is challenged

in this petition filed under Article 227 of the Constitution of India.

2. The learned counsel appearing for the petitioner was

heard. The argument of the learned counsel for the petitioner is that

Education Department has already held that petitioner is the manager

of the school, and the Government has also approved the same, and in

such circumstances, court below should have decided the suit on the

preliminary issue. It was argued that though the petitioner has

produced 13 documents in support of his case that he is the manager,

those documents were not exhibited and the trial court did not

W.P.(C) No.15512/08

2

consider the validity of those documents and the claim, and hence,

Ext.P18 order is to be quashed. The learned counsel further submitted

that another writ petition is also pending challenging the order passed

by the Government upholding the orders passed by the Department,

and no adverse order as against the petitioner was passed therein, and

therefore, in view of the order passed by the Department and the

Government, trial court should have decided the question of

maintainability as a preliminary issue, and therefore, Ext.P18 order is

to be quashed.

3. Rule 2 of Order XIV of Code of Civil Procedure

provides that notwithstanding that a case may be disposed of on a

preliminary issue and subject to the provisions of Sub-rule 2, Court

shall pronounce judgment on all issues. Sub-rule 2 of Rule 2 enables

the Court to dispose the suit on an issue of law only. It provides that

where issues both of law and of fact arise in the same suit, and the

Court is of the opinion that the case or any part of the case may be

disposed of on an issue of law only, it may try that issue first, if that

issue relates to the jurisdiction of the Court or a bar to the suit created

by any law for the time being in force, and for that purpose, if it thinks

fit, may postpone the settlement of other issues until after that issue

has been determined, and may deal with the suit in accordance with

W.P.(C) No.15512/08

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the decision on that issue. Therefore, under Sub-rule 2 to Rule 2 of

Order XIV, the Court can dispose the suit on answering the preliminary

issue only if the suit could be disposed of on the issue regarding the

jurisdiction of the Court or a bar to the suit created by any law for the

time being in force. But when that issue which is sought to be heard

as a preliminary can be disposed of only after recording evidence,

then suit cannot be disposed by answering the preliminary issue as

provided under Rule 2. Though appointment of petitioner as Manager

was approved by the Department and the Government, it is admitted

that the matter is pending before this Court in the Writ petition. In

such circumstances, it cannot be said that Ext.P18 order is illegal.

Though Sub-rule 2 enables the Court, if it thinks fit, to postpone the

settlement of other issues, in the facts explained in this case, I do not

find that any interference is warranted. The trial court is directed to

dispose the suit as expeditiously as possible.

Writ petition is disposed as above.

M.SASIDHARAN NAMBIAR,
JUDGE

nj.