IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP.No. 42 of 2011()
1. RAJENDRAN NAIR, S/O.VELUPILLAI,
... Petitioner
Vs
1. GOPALAKRISHNAN NAIR,
... Respondent
For Petitioner :SRI.M.R.RAJESH
For Respondent :SRI.R.ANILKUMAR
The Hon'ble MR. Justice K.T.SANKARAN
Dated :01/02/2011
O R D E R
K.T.SANKARAN, J.
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C.R.P. NO. 42 OF 2011 D
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Dated this the 1st day of February, 2011
O R D E R
The petitioner, the defendant in O.S.No.218 of 2003 on the file
of the Munsiff’s Court, Varkala, contended that the suit is not
maintainable. That contention was apparently not accepted in the
order passed by the trial court, which was challenged by the
petitioner in C.R.P.No.556 of 2008. As per Annexure A order dated
21.11.2008, C.R.P.No.556 of 2008 was allowed, the order passed by
the trial court was set aside and the matter was remanded to the
court below with a direction to consider issue No.1 afresh. For the
sake of convenience, the order in C.R.P.No.556 of 2008 is extracted
below:
“Heard counsel on both sides.
2. Petitioner/defendant raised a contention in the
court below as regards maintainability of the suit
O.S.No.218/03 on the file of the Munsiff’s Court, Varkala
contending that O.S.No.218/00 filed by the plaintiffs
before that court earlier was withdrawn and it is
thereafter that the present suit is filed and that therefore,
the present suit is barred by res judicata. According to
the respondents, the suit O.S.No.218/00 was withdrawn
C.R.P. NO.42 OF 2011 D
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with leave to institute fresh suit and in compliance with
order passed on the said application, viz., I.A.No.607/03
in O.S.No.218/00 and cost has also been deposited and
therefore, there is no bar for the present suit.
3. The question, therefore, for consideration is as
to what was the prayer made in I.A.No.607/03 filed in
O.S.No.218/00; as to what was the order passed
thereon by the court; whether leave was granted and if
so on what condition as to what is the judgment/decree
in O.S.No.218/00 and as to whether there is compliance
with the direction if any of the court, for enabling
withdrawal of the suit with leave. The necessary
documents to establish those aspects were produced
before the trial court by the defendant is what is
submitted before me by the counsel for the petitioner/
defendant. But, the court below is not seen to have
considered any of those aspects specifically discussing
the above documents, the date of deposit of the amount
in compliance with the order granting leave conditionally,
etc.
In the result, this revision petition is disposed of
setting aside the impugned order of the court below and
remitting the matter back to the court below to consider
issue No.1 afresh on merit and pass appropriate orders
as expeditiously as possible.”
C.R.P. NO.42 OF 2011 D
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2. Thereafter, the court below passed the order dated
15.9.2010, which reads as follows:
“Since the maintainability of the suit is mixed with
question of law and facts, this can be considered after
taking evidence. Hence adjourned for Pre Trial Steps to
29.9.10.”
3. The trial court did not comply with the direction issued by
this Court. Not only that the order passed by the court below is
cryptic, but the questions which were directed to be considered by
the court below were not considered. On that short ground, the
order dated 15.9.2010 passed by the court below is set aside and
the matter is remanded to the court below for fresh disposal after
considering the questions directed to be considered as per the order
dated 21.11.2008 in C.R.P.No.556 of 2008. The court below shall
pass orders on or before 15.3.2011.
The Civil Revision is allowed as above.
(K.T.SANKARAN)
Judge
ahz/