IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 21684 of 2006(F)
1. VARGHESE VARGHESE, S/O.VARGHESE,
... Petitioner
2. SANTHAMMA VARGHESE, W/O.VARHGESE
Vs
1. PARIYATHETU CHITTY FUND, THIRUVALLA
... Respondent
2. P.V.GEORGE, S/O.VARGHESE, PARIYATHETU
For Petitioner :SRI.MOHAN JACOB GEORGE
For Respondent :SMT.ELIZABETH MATHAI IDICULLA
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :10/02/2010
O R D E R
S.S.SATHEESACHANDRAN, J.
-------------------------------
W.P.(C).NO.21684 OF 2006 ()
-----------------------------------
Dated this the 10th day of February, 2010
J U D G M E N T
Petitioners are the defendants in O.S.No.177 of 2003 on
the file of the Principal Sub Court, Alappuzha. The above suit
is one for money and the respondents are the plaintiffs. First
plaintiff, a registered partnership firm conducting chitty
business laid the suit alleging that the amount due in a chitty
subscribed by the 1st defendant with the 2nd and 3rd defendants
as sureties, after prizing such chitty, had not been discharged
by them. The defendants resisted the suit claim, in which,
among other contentions, they also challenged the
maintainability of the suit contending that as on the date of
accrual of the cause of auction, the 2nd plaintiff, who was
shown as one of the partners of the firm was not a partner of
the firm, but, he became a partner at a later stage, and that a
suit previously instituted with the same cause of auction had
been dismissed as not pressed by the 1st plaintiff firm. The
WPC.21684/06 2
defendants also moved an application for considering the issue
of maintainability preliminarily canvassed by them challenging
the entertainability of the suit. However, that application was
pressed into service only at a later stage after the suit came
up in the special list for trial. Plaintiffs have filed objection to
the application moved by the defendants for considering the
maintainability of the issue before proceeding with the trial of
other issues involved in the case. The learned Sub Judge,
after hearing both sides, under the impugned order, found
that the suit is maintainable negativing the challenges
canvassed by the defendants. Propriety and correctness of
that order is challenged in the writ petition invoking the
supervisory jurisdiction vested with this Court under Article
227 of the Constitution of India.
2. I heard the counsel on both sides. At the time of
hearing, it is practically conceded that the issue of
maintainability raised by the defendants in the suit can be
gone into and determined only after examining the relevant
materials and consideration of the disputed facts presented in
WPC.21684/06 3
the case. Maintainability of the suit challenged by the
defendants, it is evident, can be determined only on evidence
as it is based on mixed questions of fact and law. When that
be so, the larger question emerges for consideration is
whether the challenge against the maintainability of the suit
can be gone into as a preliminary issue. Order XIV Rule 2 of
the Code of Civil Procedure clearly indicates that when an
issue involves consideration of mixed question of fact and law,
and evidence is necessary to decide it, cannot be tried as a
preliminary issue. In Thiruvambadi Rubber Co. Ltd. v.
Damodaran Nair (1984 KLT 586) analysing the ambit and
scope of Order XIV Rule 2 of the CPC, this Court has held that
it is only an issue of law which goes to the root of the suit and
capable of being decided without recording evidence that
must be tried as a preliminary issue in the first instance under
Rule 2 of Order XIV of the CPC. So much so, I find that the
question canvassed by the defendants challenging the
maintainability of the suit has to be considered with other
issues cast in the suit in the trial, and issue of maintainability
cannot be considered preliminarily. So much so, without
WPC.21684/06 4
going into the challenges raised as to the maintainability of
the suit, I direct the learned Sub Judge to examine the issue
of maintainability afresh untrammelled by any of the
observations made in the impugned order along with other
issues after taking evidence in the suit. The impugned order
shall stand set aside. Subject to the above observations, the
writ petition is closed.
S.S.SATHEESACHANDRAN
JUDGE
prp