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