IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 4707 of 2009(I)
1. MALA ARAYA KSHETHRA SAMRAKSHANA SAMITHY
... Petitioner
2. K.N. NARAYANAN, S/O. DAMODARAN,
Vs
1. AKHILA THIRUVITHAMCORE MALA ARAYA
... Respondent
2. MALA ARAYA MAHA SABHA, BRANCH NO.1,
3. P.N. GOPALAN, S/O. NARAYANAN,
4. AIKYA MALA ARAYA MAHA SABHA,
5. DAMODARAN, S/O. KESAVAN,
6. SHIBU, S/O. NARAYANAN,
7. PUSHPANGATHAN,
For Petitioner :SRI.GOVIND K.BHARATHAN (SR.)
For Respondent :SRI.A.C.DEVASIA
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :13/07/2009
O R D E R
S.S.SATHEESACHANDRAN, J.
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W.P.(C).No.4707 OF 2009
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Dated this the 13th day of July 2009
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JUDGMENT
The writ petition is filed seeking the
following reliefs.
i) Call for the records leading to Ext.P5
order in I.A No.52/2009 in O.S No.
79/2004 of the Sub Court, Kattappana and
to issue appropriate order or direction
setting aside the same.
ii) Issue appropriate order or direction
directing the Learned Subordinate Judge,
Kattappana, to allow the I.S 52/2009 in
O.S.79/2004 of the Sub Court, Kattappana.
iii)Grant the petitioners their costs of the
above writ petition and pass such further
orders which may be deemed fit and proper
in the circumstances of the case.
W.P.(C).No.4707 OF 2009 2
2. Petitioners are the defendants 1 and 2 in
O.S No.79/2004 on the file of Sub Court,
Kattappana. In the written statement, these
defendants have raised a contention that the
present suit is barred by Order 2 Rule 2 of Code of
Civil Procedure in view of the dismissal of a
previous suit filed by the plaintiffs. The
petitioners after settling of the issues wanted the
maintainability of the suit to be considered
preliminarily, and for that purpose they moved an
application. The learned Sub Judge after hearing
both sides dismissed that application. The
propriety and correctness of that order is
challenged in the writ petition by the petitioners
invoking the supervisory jurisdiction vested with
this court under Article 227 of the Constitution of
India.
W.P.(C).No.4707 OF 2009 3
3. I have heard the counsel on both sides.
From the submissions made and facts and
circumstances presented and with reference to the
materials tendered by the writ petition, I do not
find any impropriety or illegality in the order
passed by the learned Sub Judge impugned in the
writ petition. In fact the learned Sub Judge has
not taken a decision on the issue raised , but only
relegated it for consideration with other issues
raised in the suit. It appears that a challenge,
the suit is barred under Order 2 Rule 2 of Code of
Civil Procedure was raised by these petitioners for
the reason that a previous suit for injunction
filed by the plaintiff after adjudication was
dismissed. I do not want to express any opinion on
the merit of that defence raised in the present
suit, which is one for a relief of recovery of
possession on the basis of title. However, it has
to be pointed out that the identity of cause of
W.P.(C).No.4707 OF 2009 4
action is the question to be considered whether the
suit is barred in view of the dismissal of the
previous suit. It is seen from the order of the
learned Sub Judge that the suit is ripe for trial.
I direct the learned Sub Judge to give the suit top
priority in hearing and to dispose it as
expeditiously as possible, but, after giving
reasonable opportunity to both sides to establish
their respective case. Writ petition is closed.
Sd/-
S.S.SATHEESACHANDRAN,
JUDGE
//TRUE COPY//
P.A TO JUDGE
vdv