Dismissed

Dina Mon v. Maniyan

Kerala HC6 Feb 2013OP(C)/503/2013

Case brief

AI extract

What is this about?

Original petition filed to challenge the lower court's decision to not decide the maintainability of an underlying suit as a preliminary issue. The High Court held that the question of who is bound by a prior decree is a matter for the trial court, not a pure question of law, and dismissed the petition.

What did the court decide?

The original petition was dismissed, with no direction given to the lower court to decide the underlying suit as a preliminary issue.

Dina Mon Vs Maniyan — Property and Title | Kerala HC (2013)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH

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WEDNESDAY, THE 6TH DAY OF FEBRUARY 2013/17TH MAGHA 1934

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OP(C).No. 503 of 2013 (O) ------------------------AGAINST THE ORDER/JUDGMENT IN OS.139/2012 of SUB COURT, MAVELIKKARA DATED 08-11-2012

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PETITIONER(S):

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DINA MON, S/O DINAKARAN, VELIYIL VEETIL, CHIRAKADAVAM MURIYIL KAYAMKULAM VILLAGE.

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PREMIER MON, S/O DINAKARAN, VELIYIL VEETIL, CHIRAKADAVAM MURIYIL KAYAMKULAM VILLAGE.

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DEEPTHI DINAKAR, D/O DINAKARAN, VELIYIL VEETIL, CHIRAKADAVAM MURIYIL KAYAMKULAM VILLAGE.

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RAKHI DINAKAR, D/O DINAKARAN, VELIYIL VEETIL, CHIRAKADAVAM MURIYIL KAYAMKULAM VILLAGE.

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SARASI BHAI, W/O DINAKARAN, VELIYIL VEETIL, CHIRAKADAVAM MURIYIL KAYAMKULM VILLAGE.

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BY ADVS.SRI.P.B.SURESH KUMAR (SR.) SRI.LEO GEORGE SRI.K.N.SASIDHARAN NAIR SRI.T.T.RAKESH

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RESPONDENT(S):

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MANIYAN, S/O KUNJU PANIKKAN, PANCHARIL VEETTIL PULIKKANAKKU MURIYIL, KAYAMKULAM VILLAGE KAYAMKULAM P.O. 690 502.

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 06-02-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP(C).No. 503 of 2013 (O)

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PETITIONER(S) EXHIBITS

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EXHIBIT	P1: TRUE COPY OF THE JUDGMENT IN O.S.NO.10/1998 BEFORE THE MUNSIFF'S COURT, KAYAMKULAM DATED 29.11.1990.
EXHIBIT	P2: TRUE COPY OF THE DECREE IN O.S.NO.10/1988 BEFORE THE MUNSIFF'S COURT KAYAMKULAM DATED 29.11.1990.
EXHIBIT	P3: TRUE COPY OF THE PLAINT INO.S.NO.139/2012 BEFORE THE SUB COURT, MAVELIKKARA DATED 19.3.2012.
EXHIBIT	P4: TRUE COPY OF THE WRITTEN STATEMENT OF DEFENDANTS 1 TO 5 IN O.S.NO.139/2012 BEFORE THE SUB COURT, MAVELIKKARA DATED NIL.
EXHIBIT	P5: TRUE COPY OF THE ORDER IN O.S.NO.139/2012 BEFORE the SUB COURT, MAVELIKKARA DATED 8.11.2012.

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RESPONDENTS' EXHIBITS : NIL

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True Copy

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P.A to Judge

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THOMAS P.JOSEPH, J. =========================

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O.P(C).No.503 of 2013

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============================ Dated this the 06^th day of February, 2013

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J U D G M E N T

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Petitioners are the defendants in O.S.No.139 of 2012 of the

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Sub Court, Mavelikkara. That is a suit filed by the respondent for recovery of possession of the suit property, damages etc. Respondent alleged that petitioners trespassed into the suit property and committed waste which resulted in loss to him. Hence the suit.

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Petitioners contended that the suit is not maintainable since respondent had earlier obtained a decree in O.S.No.10 of 1988 declaring possession of the respondent and granting a decree for prohibitory injunction and hence, if the allegation in the plaint is true, it is a violation of the decree in O.S.No.10 of 1988 which has to be proceeded against under Sec.47 and Order XXI Rule 32 of the Code of Civil Procedure (for short, "the Code"). Petitioners wanted maintainability of O.S.No.139 of 2012 to be decided as a preliminary issue.

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Learned Sub Judge, after hearing both sides observed that the issue raised is not one which could be decided as a preliminary issue under Order XIV Rule 2 of the Code and relegated

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O.P(C).No.503 of 2013

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the decision on the issue while deciding other issues in the suit. Ext.P5, order is under challenge.

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It is contended by the learned counsel that in O.S.No.10 of 1988, there is a decree restraining the 5^th petitioner/5^th defendant, her men and agents from trespassing into the property and hence if other petitioners have trespassed into the property, that is a violation of the decree in O.S.No.10 of 1988 under the 5^th petitioner.

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The question whether petitioners other than the 5^th petitioner were acting under the 5^th petitioner or asserts independent right over the property is a matter which has to be decided by the trial court. If petitioners other than 5^th petitioner are claiming independent right over the property, it may not be possible to say that they are bound by the decree in O.S.No.10 of 1988. That is the view taken by learned Sub Judge in Ext.P5, order. In that view of the matter, no direction could be made to decide maintainability of the present suit as a preliminary issue as if it is a question of law alone affecting jurisdiction of the Court. I do not find reason to interfere.

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O.P(C).No.503 of 2013

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If petitioners are desirous of an early disposal of O.S.No.139 of 2012, it is open to them to request learned Sub Judge to do so after completing the pre trial steps.

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This original petition is dismissed.

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THOMAS P.JOSEPH, JUDGE

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Sbna

Dina Mon v. Maniyan

Case brief

What is this about?

What did the court decide?

Dina Mon v. Maniyan

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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