Revision petition against observations in a plaint rejection application. Court held that questions of maintainability and cause of action are factual and should be decided at the final stage only.
Observations in I.A. No.2476/2015 expunged; Revision Petition allowed to that extent.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
TUESDAY, THE 3RD DAY OF JANUARY 2017/13TH POUSHA, 1938
CRP.No. 3 of 2016 ()
I.A. NO.2476/2015 IN O.S. NO.31/2015 OF SUB COURT-II, KOZHIKODE.
REVISION PETITIONER/PETITIONER/DEFENDANT:
KHALEEL, S/O. SYED MOHAMMED, AGED 55 YEARS, MANAGING DIRECTOR, M/S.SUKHAM CONSTRUCTIONS PVT. LTD., II FLOOR, MARY TOWER, UNIVERSITY JUNCTION, KALAMASSERY, KOCHI- 682 033.
BY ADVS.SRI.C.S.MANU, SRI.S.K.PREMRAJ, SMT.V.SARITHA, MRS.S.SREELAKSHMY, SRI.T.B.SIVAPRASAD, SMT.NEETHU.K.SHAJI, SRI.C.Y.VIJAY KUMAR.
RESPONDENT/RESPONDENT/PLAINTIFF:
ARANJIKKAL JAMAL MUHAMMED, S/O. MUHAMMED, AGED 51 YEARS, PATHAPAIRIYAM, EDAVANNA, MALAPPURAM DISTRICT-676 541.
BY ADVS. SRI.NIRMAL. S.,
SMT.S.SREEJA (ANCHAL).,
THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 03-01-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
rs.
CRP.No. 3 of 2016
APPENDIX
PETITIONER'S ANNEXURES:-
ANNEXURE A1 COPY OF THE PLAINT IN O.S. NO.31/2015 ON FILES OF THE HON'BLE 2ND ADDITIONAL SUB COURT, KOZHIKODE, FILED BY THE RESPONDENT.
RESPONDENT'S ANNEXURES:- NIL.
//TRUE COPY//
P.S. TO JUDGE
rs.
A.MUHAMED MUSTAQUE, J.
=========================
C.R.P.No.3/2016
Dated this the 3rd day of January, 2017
O R D E R
This revision petition is filed by the defendant in O.S.No.31 of 2015 on the file of the court of the Subordinate Judge, Kozhikode. The is suit for realisation of money. The defendant filed an application as I.A.No.2476 of 2015 in O.S.No.31 of 2015 to reject the plaint alleging that the plaint does not disclose any cause of action. It appears that he raised a contention regarding limitation. This contention is made on the ground that plaintiff being supplier of building materials to the defendant, the period of limitation has to be reckoned from the last date of delivery of goods. On the other hand, the plaintiff’s contention appears to be that there is acknowledgement in the agreement as to the transaction and the suit is essentially based on the agreement. The court below rejected the application for rejecting the plaint on the findings as follows:
“5. Going through plaint averments it is seen that suit is against petitioner/defendant in his personal capacity based on an agreement dated 22.05.2012 and cause of action is also pleaded in the suit. In the
CRP No.3/2016
-:2:-
circumstance I find no reason to reject the plaint as prayed for in the petition.”
capacity based on the agreement. If there is no other legal infirmity, without going into the disputed questions of fact, the court below ought to have simply closed the matter allowing the parties to proceed further to contest the matter. This court is of the view that the observations made in the suit are unwarranted as these are all matters to be decided at the final stage. Therefore, the question regarding maintainability of the suit involving question of facts and laws, shall be decided by the court below at the final stage. Accordingly, the observations made by the court below in I.A.No.2476 of 2015 in O.S.No.31 of 2015 is expunged. The revision petition is allowed to the above extent. No costs.
Sd/-
A.MUHAMED MUSTAQUE, JUDGE
ms
2 issues framed by the court
Whether observations made at the stage of rejection of plaint regarding cause of action and maintainability are maintainable.
Whether questions regarding cause of action and facts should be decided at the final stage rather than at the plaint rejection stage.
Khaleel
Aranjikkal Jamal Muhammed
A.Muhamd Mustaque
As recorded by the court registry
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