Kerala High Court
P.R.Baby vs Mary Jose
Author: K.Abraham Mathew
Bench: K.Abraham Mathew
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE K.ABRAHAM MATHEW
FRIDAY, THE 4TH DAY OF MARCH 2016/14TH PHALGUNA, 1937
OP(C).No. 671 of 2016 (O)
--------------------------
OS 324/2012 of PRL.MUNSIFF COURT, ERNAKULAM
--------------
PETITIONER :
------------------
P.R.BABY,GILGAL, PADAPPURACKAL HOUSE,
NEAR MODEL ENGINEERING COLLEGE, THRIKKAKKARA,
KAKKANAD P.O., KOCHI-682 021.
BY ADVS.SRI.PAUL MATHEW (PERUMPILLIL)
SRI.PRASUN.S
RESPONDENTS :
-----------------------
1. MARY JOSE, W/O.C.C.JOSE, CHAKKALAKAL HOUSE, ANNAMANADA(VIA),
CHALAKKUDY, ERNAKULAM DISTRICT, PIN-680 741.
2. STATE OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR,
CIVIL STATION, KAKKANAD, ERNAKULAM.
3. MODEL ENGINEERING COLLEGE, THRIKKAKKARA,
REPRESENTED BY ITS PRINCIPAL, KAKKANAD P.O.
KOCHI-682 021.
4. KUNJACHAN, S/O. THOMAS, THANNIPPARA, XII/986,
NEAR MODEL ENGINEERING COLLEGE, THRIKKAKKARA
KAKKANAD P.O., KOCHI - 682 021.
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 04-03-2016,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
bp
OP(C).No. 671 of 2016 (O)
--------------------------
APPENDIX
PETITIONER(S)' EXHIBITS
-------------------------------------
EXT.P1: TRUE PHOTOSTAT COPY OF THE PLAINT IN O.S.NO.324/2012 FILED BY
THE 1ST RESPONDENT BEFORE THE MUNSIFF'S COURT,
ERNAKULAM.
EXT.P2: TRUE PHOTOSTAT COPY OF THE CERTIFIED COPY OF THE PLAINT IN
O.S.NO.1561/2005, FILED BY THE 1ST RESPONDENT BEFORE THE
MUNSIFF'S COURT, ERNAKULAM.
EXT.P3: TRUE PHOTOSTAT COPY OF THE CERTIFIED COPY OF JUDGMENT
DT.12.6.2006 IN O.S.NO.1561/2005 OF THE MUNSIFF'S COURT,
ERNAKULAM.
EXT.P4: TRUE PHOTOSTAT COPY OF THE JUDGMENT DATED 15.2.102 IN
C.R.P.NO.62 OF 2012 PASSED BY THIS HON'BLE COURT.
EXT.P5: TRUE PHOTOSTAT COPY OF THE WRITTEN STATEMENT FILED BY THE
PETITIONER IN O.S.NO.324/2012 BEFORE THE MUNSIFF'S COURT,
ERNAKULAM.
EXT.P6: TRUE PHOTOSTAT COPY OF I.A.NO.2441 OF 2012 FILED IN
O.S.NO.324/2012 BY THE 1ST RESPONDENT BEFORE THE MUNSIFF'S
COURT, ERNAKULAM.
EXT.P7: TRUE PHOTOSTAT COPY OF THE COUNTER AFFIDAVIT FILED BY THE
PETITIONER TO EXHIBIT P6 PETITION.
EXT.P8: TRUE PHOTOSTAT COPY OF I.A.NO.9869/2014 IN O.S.NO.324/2012
FILED BY THE 1ST RESPONDENT BEFORE THE MUNSIFF'S COURT,
ERNAKULAM.
EXT.P9: TRUE PHOTOSTAT COPY OF THE COUNTER AFFIDAVIT FILED BY THE
PETITIONER BEFORE THE MUNSIFF'S COURT, ERNAKULAM IN
I.A.NO.9869/2014 IN O.A.NO.324 OF 2012.
EXT.P10: TRUE PHOTOSTAT COPY OF I.A.NO.2059/2015 IN O.S.NO.324/2012
FILED BY 1ST RESPONDENT BEFORE THE MUNSIFF'S COURT
ERNAKULAM.
EXT.P11: TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE PETITIONER
HEREIN TO I.A.NO.2059/2015 IN O.S.NO.324/2012.
EXT.P12: TRUE PHOTOSTAT COPY OF I.A.NO.4625 OF 2015 IN O.S.NO.324/2012
FILED BY THE PETITIONER BEFORE THE MUNSIFF'S COURT,
ERNAKULAM TOGETHER WITH LIST OF DOCUMENTS.
RESPONDENT(S)' EXHIBITS : NIL.
//TRUE COPY//
P.A.TO JUDGE
bp
K.ABRAHAM MATHEW J.
--------------------------------------------------------
O.P.(C) No.671 of 2016
--------------------------------------------------------
Dated this the 4th day of March, 2016
JUDGMENT
Petitioner is the third defendant in O.S.No.324 of 2012 of Munsiff Court, Ernakulam. One of the contentions raised in his written statement is that the suit is barred by the principle of res judicata in view of the judgment and decree in an earlier suit. His complaint is that the issue relating to it is not being heard as a preliminary issue.
2. Heard the learned counsel for the petitioner.
3. I am satisfied that the request of the petitioner to direct the learned Munsiff to hear the issue relating to the maintainability of the suit shall be heard as a preliminary issue unless it is a mixed question of law and fact. The maintainability of the suit is disputed on other grounds also, it is submitted.
In the result, this Original Petition is disposed of directing the learned Munsiff to consider whether Ext P12 application and decide whether maintainability of the suit shall be heard as a preliminary issue. If there is no legal impediment it should be heard as a preliminary issue within four months from the date of receipt or production of a copy of this judgment, whichever is earlier.
Sd/-
K.ABRAHAM MATHEW
JUDGE
cms
/True copy/ P.S.to Judge