Davis and Liny v. Martin

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN TUESDAY, THE 25TH DAY OF OCTOBER 2016/3RD KARTHIKA, 1938 OP(C).No. 1476 of 2016 (O) --------------------------- AGAINST THE ORDER/JUDGMENT IN OS 283/2007 of MUNSIFF COURT,ALUVA PETITIONER(S): ------------- 1. DAVIS AGED 44 YEARS, S/O. KUNJAVARA, MOONJELI, ANAPPARA P.O, ELAVANTHI DESOM, MANJAPARA VILLAGE, ALUVA TALUK 2. LINY, AGED 40 YEARS, W/O. DEVIS, MOONJELI, ANAPPARA P.O, ELAVANTHI DESOM, MANJAPARA VILLAGE, ALUVA TALUK BY ADVS.SMT.SREEJA SOHAN.K. SRI.BIJO MATHEW JOY SMT.GAYATHRI KRISHNAN RESPONDENT(S): -------------- MARTIN AGED 42 YEARS, S/O. VARIYATH, PANIKKULAM HOUSE, VADAKKUMBHAGAM KARA, MANJAPRA VILLAGE, ALUVA TALUK. R1 BY ADV. SRI.K.SHRIHARI RAO R1 BY ADV. SMT.N.SHOBHA THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 25-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C).No. 1476 of 2016 (O) --------------------------- APPENDIX PETITIONER(S)' EXHIBITS ----------------------P1 TRUE COPY OF THE JUDGMENT IN OS. 283/2007 DATED, 11.12.2009 ON THE FILE OF THE MUNSIFF COURT, ALUVA. P2 TRUE COPY OF THE JUDGMENT IN AS. 9/2010 DATED 30.11.2013 ON THE FILE OF THE ADDL. DISTRICT COURT, NORTH PARAVUR. P3 TRUE COPY OF THE PROCEEDINGS DATED 09.12.2014 BEFORE THE MUNSIFF'S COURT, ALUVA IN OS.283/2007 P4 TRUE COPY OF THE ORDER IN IA. 124/2015 DATED 09.02.2016 ON THE FILE OF THE MUNSIFF COURT, ALUVA. RESPONDENT(S)' EXHIBITS ----------------------- nil TRUE COPY P.S. TO JUDGE ## **P.N. Ravindran, J.** **- - - - - - - - - - - - - - - - - - - - - -- - - O.P.(C) No.1476 of 2016 - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 25[th] October, 2016** ## **JUDGMENT** The petitioners are defendants 7 and 8 in O.S.No.283 of 2007 on the file of the Court of the Munsiff of Aluva. The sole respondent is the plaintiff therein. O.S.No.283 of 2007 instituted by the sole respondent is a suit for partition of plaint schedule property into 17 shares and allotment of 5/17 shares to him. Upon receipt of notice, the defendants including the petitioners herein entered appearance and filed separate written statements contesting the suit. After trial, the trial court dismissed O.S.No.283 of 2007 by decree and judgment delivered on 11.12.2009. Aggrieved by the decree dismissing the suit the plaintiff filed A.S.No.9 of 2010 on the file of the Court of the Additional District Judge of North Parur. Before the appellate court the respondent plaintiff filed I.A.No.616 of 2012 for amendment of the plaint, for the purpose of incorporating the correct description of the plaint schedule property. That application was heard and allowed by order passed on 22.3.2013 and the amendment was also carried out. He also produced additional documents which were received into evidence and marked as Exts.A5 to A8. After considering the rival contentions, the appellate court allowed A.S.No.9 of 2010, set aside the decree OP(C) 1476/2016 2 dismissing the suit and remanded the suit for fresh trial and disposal. The decretal portion of the judgment delivered by the Court of the Additional District Judge of North Parur on 30.11.2013 in A.S.No.9 of 2010 reads as follows: - “1) The impugned judgment and decree in O.S.No.283/2007 of the Munsiff Court, Aluva is set aside. 2) The case is remanded to the lower court for fresh consideration including the maintainability of the suit in view of the preliminary decree in O.S.No.99/1974 of the Munsiff's Court, Perumbavoor and the amendment of the plaint schedule and additional documents marked as Exts.A5 to A8. - 3) Both parties are at liberty to adduce additional evidence, if any. - 4) After additional evidence if any and after hearing both parties, the lower court is directed to dispose of the suit on merits as per law, as expeditiously as possible. 5) No costs.” 2. After remand, the petitioners herein submitted before the trial court below that the question whether the present suit is maintainable in view of Ext.A6 preliminary decree passed in O.S.No.99 of 1974 on the file of the Munsiff's Court, Perumbavoor may be tried as a preliminary issue. After considering the rival contentions, the trial court held that the question whether the plaintiff's 5/17 shares have already been separated and whether it forms part of the plaint schedule can be ascertained only after evidence is adduced. The trial OP(C) 1476/2016 3 court accordingly held that the said question being a pure question of fact, the question whether the suit is maintainable or not in view of Ext.A6 decree cannot be gone into at the interlocutory stage. The trial court relegated the said issue to be considered at the time of final hearing. The petitioners did not challenge the order passed by the trial court in that regard on 9.12.2014. Instead, they filed I.A.No.124 of 2015 with a prayer that the issue regarding maintainability of the suit may be tried as a preliminary issue. The trial court dismissed the said application by order passed on 9.2.2016, a copy of which is produced and marked as Ext.P4. The said order is under challenge in this original petition filed under Article 227 of the Constitution of India. 3. I heard Smt. Sreeja Sohan K., learned counsel appearing for the petitioners and Sri K.Shrihari Rao, learned counsel appearing for the respondent. I have also gone through the pleadings and the materials on record. The rights of parties are governed by the order of remand passed by the first appellate court in A.S.No.9 of 2010. On the terms of the order of remand, one of the issues to be considered by the trial court is the issue regarding maintainability of the suit. The appellate court did not when it remanded O.S.No.283 of 2007 to the trial court, direct that the issue regarding maintainability of the suit should be tried as a preliminary issue. The suit was instituted on 28.6.2007. More than 9 years have passed thereafter. After remand OP(C) 1476/2016 4 the petitioners contended that the issue regarding maintainability of the suit should be tried as a preliminary issue. The trial court held that as the issue regarding maintainability of the suit involves a mixed question of law and fact, that issue cannot be decided at the interlocutory stage as a preliminary issue. This was as per proceedings dated 19.12.2014. The petitioners did not for reasons best known to them challenge the finding entered by the trial court. Instead, they filed I.A.No.124 of 2015 with a prayer that the issue regarding maintainability of the suit may be tried as a preliminary issue. 4. It is relevant in this context to note that before the trial court, in the first round, the petitioners had no case that in view of the decree passed in O.S.No.99 of 1974 on the file of the Munsiff's Court, Perumbavoor, the instant suit is not maintainable. Such a plea was raised by them for the first time only after the plaint in O.S.No.283 of 2007 was allowed to be amended by the appellate court in A.S.No.9 of 2010. The case set out by the plaintiff is that the plaint schedule property comprises of the plaint schedule property in O.S.No.99 of 1974. It is his case that as per the final decree passed in that suit the plaint schedule property therein was to be divided into 17 shares, that he has purchased 5 out of 17 such shares from the defendants in the instant suit and that the sharers have assigned the remaining extent of property to the other defendants. The case set out by the petitioners OP(C) 1476/2016 5 in the affidavit filed in support of I.A.No.124 of 2015 is that a final decree has been passed in O.S.No.99 of 1974 and as the plaintiff has purchased only the undivided share of defendants 7, 9, 10 and 14, he is not entitled to institute the instant suit. In my considered opinion, having regard to the nature of the contention raised by the petitioners, the court below was perfectly right in coming to the conclusion that the issue regarding maintainability of the suit cannot be tried as a preliminary issue for the reason that it requires an adjudication of facts as well. The rights of parties are in my opinion concluded by the order passed by the trial court on 9.12.2014. It was without challenging that order the petitioners herein later filed I.A.No.124 of 2015 seeking the very same relief. Having regard to the fact that their earlier attempt to have the issue regarding maintainability of the suit tried as a preliminary issue, was repelled by the court below, the petitioners cannot in my opinion once again raise that issue and contend for the position that the issue regarding maintainability of the suit should be tried as a preliminary issue. 5. As stated earlier, on the terms of the order of remand passed by the appellate court the petitioners are not entitled to contend for the position that the issue regarding maintainability of the suit should be tried as a preliminary issue. A learned single judge of this court has in **Thiruvambadi Rubber Co. Ltd. v. Damodaran Nair** (1984 KLT OP(C) 1476/2016 6 586) held that where mixed questions of law and fact are involved, the issue regarding maintainability of the suit cannot be tried as a preliminary issue. In the instant case, unless it is proved by evidence that the plaint schedule property comprises of the lands set apart to the share of defendants 7, 9, 10 and 14 and it is further proved that there is no scope for any further division of the plaint schedule property, the plaintiff in the instant case cannot be non-suited. A finding on the said issue can be entered only after evidence is adduced. Such being the situation, I am not persuaded to hold that the court below committed any error when it dismissed I.A.No.124 of 2015. The original petition is in my opinion misconceived and without any merit. It fails and is accordingly dismissed with a direction to the Court of the Munsiff of Aluva where O.S.No.283 of 2007 is pending, to try and dispose of the suit expeditiously and in any event, before the civil courts close for the summer vacation of 2017. ## **(P.N. Ravindran, Judge)** ## **kav/**