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Mala Araya Kshethra Samrakshana … vs Akhila Thiruvithamcore Mala … on 13 July, 2009

Kerala High Court
Mala Araya Kshethra Samrakshana … vs Akhila Thiruvithamcore Mala … on 13 July, 2009
       

  

  

 
 
  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.
         -----------------------------
            W.P.(C).No.4707 OF 2009
          --------------------------
     Dated this the 13th day of July 2009
    -------------------------------------


                    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

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