In an appeal against dismissal of a prohibitory injunction suit due to property identity issues, the court held that a subsequent declaration suit is not barred under Section 11 CPC. The present appeal was dismissed as no question of law was involved.
The appeal was dismissed. No costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
MONDAY, THE 27TH DAY OF MAY 2019 / 6TH JYAISHTA, 1941
RSA.No. 473 of 2009
AGAINST THE JUDGMENT AND DECREE DATED 14-11-2008 IN AS 118/2004 of I ADDITIONAL DISTRICT COURT, PALAKKAD
AGAINST THE JUDGMENT AND DECREE DATED 16-02-2004 IN OS 547/2000 of PRINCIPAL MUNSIFF COURT, PALAKKAD
APPELLANT/APPELLANT/PLAINTIFF:
SWAMINATHAN, S/O.MADHAVA PANICKER, RESIDING AT POOZHIKUNNATH HOUSE, KANJIKKODE, PUDUSSERY AMSOM, PALAKKAD DISTRICT.
BY ADVS. SRI.A.R.NIMOD SRI.C.A.ANOOP SRI.JIBU P THOMAS SRI.P.S.APPU SRI.T.C.SURESH MENON
RESPONDENTS/RESPONDENTS/DEFENDANTS 2 & 3:
1 SIVARAMAN, S/O.APPUKUTTAN.
2 RAJAN @ PONNUMANI, S/O.APPUKUTTAN,
BOTH ARE RESIDING AT PADINJARETHARA, KANJIKKODE CENTRAL VILLAGE, PUDUSSERY AMSOM, PALAKKAD TALUK.
BY ADV. SRI.JACOB SEBASTIAN
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 27.05.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
RSA.No. 473 of 2009 2
JUDGMENT
Aggrieved by the concurrent finding rendered by both the Trial Court (Principal Munsiff Court, Palakkad) in O.S.No.547/2000 and the First Appellate Court (I Addl.District Court, Palakkad) in A.S.No.118/2004, the defeated plaintiff in a
suit for permanent prohibitory injunction came up with this appeal.
for the appellant that the suit was filed for a
permanent prohibitory injunction and it was dismissed concurrently by both the Trial Court and the First Appellate Court, on the ground that the property scheduled in the plaint is not
identifiable. Nothing was brought to the notice of this court regarding the identity of the property with its specification by the learned counsel for the appellant but sought permission to institute a
fresh suit for declaration of the title by
rectifying the mistake crept in the plaint. It is
RSA.No. 473 of 2009 3
now settled that when the injunction suit was dismissed on any ground of defect either in the
format or on the question of identity of the property, a second suit of declaration of the title is not barred under Section 11 CPC or by the application of res-judicata. Anyway it is matter to be looked into and agitated as per the lex fori lex loci in a second suit, if any, filed. It is not permissible for this court to reserve any right to institute a second suit as it is always open to the plaintiff, if it is otherwise maintainable. With that observation the present appeal is hereby dismissed as none of the question of law framed at the time of admission is not involved in the case.
The appeal is dismissed. No costs.
Sd/-
P.SOMARAJAN
JUDGE
msp
//TRUE COPY//
P.A. TO JUDGE
2 issues framed by the court
Whether a second suit for declaration of title is barred under Section 11 CPC after dismissal for defect in injunction suit.
Whether the court can reserve a right to institute a second suit in the present appeal.
1 provisions across 1 enactments
Swaminathan
Sivaraman
Rajan
P. Somarajan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
