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2024 Supreme(Online)(KER) 2591
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
FRIDAY, THE 15TH DAY OF MARCH 2024 / 25TH PHALGUNA, 1945
ORDER IN I.A.NOS.1 & 2 OF 2024 IN CS NO.32 OF 2022 OF COMMERCIAL
JUDGE/SUBORDINATE JUDGE OF VATAKARA
PETITIONER:
KUNHIMOOSSA
AGED 64 YEARS
KUNHI MAMMU, DIRECTOR.M/S. SAVOURY RESTAURANT, NO.27,
MOSQUE ROAD, FRAZER TOWN, BANGALORE, KARNATAKA, PIN -
560006
BY ADVS.
P.VISWANATHAN (SR.)
AJITH VISWANATHAN
K.SANEESH KUMAR
HAIRA
SAYED MANSOOR BAFAKHY THANGAL
SHIBU JOSEPH
RESPONDENT:
C.K. SURENDRAN
S/O. ACHUTHAN, RESIDING AT CHERUVATH, CHORODE POST,
VATAKARA TALUK, KOZHIKODE DISTRICT, PROPRIETOR- ROCKY
ENCLAVE, CHORODE, VATAKARA, KOZHIKODE,, PIN - 673101
BY ADVS.
R.PARTHASARATHY
B.KRISHNAN
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 15.03.2024,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
T.R. RAVI, J.
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O.P(C) No.209 of 2024
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Dated this the 15th day of March, 2024
P.VISWANATHAN (SR.)
AJITH VISWANATHAN
K.SANEESH KUMAR HAIRA
SAYED MANSOOR BAFAKHY THANGAL
SHIBU JOSEPH
R.PARTHASARATHY
B.KRISHNAN
It is not proper for the court to go into the merits of the contentions in an original petition when the trial has been completed and the interlocutory applications stand posted for hearing.
Headnote:
ORDER 2 RULE 2 CPC - MAINTAINABILITY OF SUIT - PRELIMINARY ISSUE
Fact of the Case:
The petitioner challenged an order passed by the Commercial Judge, Vatakara in I.A.Nos.1 and 2 of 2024. I.A.No.1 of 2024 was filed by the plaintiff seeking to pass a judgment on the basis of the admission of the parties. I.A.No.2 of 2024 was filed by the defendant seeking to hear the question of maintainability of the suit as a preliminary issue.
Finding of the Court:
The court held that it was not proper to go into the merits of the contentions in the original petition and directed the Commercial Court, Vatakara to hear and dispose of the suit untrammeled by the observations in the impugned order.
Issues: Whether the court should go into the merits of the contentions in the original petition.
Ratio Decidendi: The court relied on the principle that it is not proper to go into the merits of the contentions in an original petition when the trial has been completed and the interlocutory applications stand posted for hearing.
Final Decision: The court disposed of the original petition and directed the Commercial Court, Vatakara to hear and dispose of the suit untrammeled by the observations in the impugned order.
JUDGMENT
The original petition has been filed challenging Ext.P15 order passed by the Commercial Judge, Vatakara in I.A.Nos.1 and 2 of 2024. I.A.No.1 of 2024 has been preferred by the plaintiff seeking to pass a judgment on the basis of the admission of the parties. I.A.No.2 of 2024 has been filed by the defendant seeking to hear the question of maintainability of the suit as a preliminary issue. Pending the original petition, the trial has been completed and the interlocutory applications stand posted for hearing.
2. In the above circumstances, it is not proper for this Court to go into the merits of the contentions in this original petition. The counsel for the petitioner submits that the petitioner has a case that the plaintiff has relinquished part of the claim and an argument based on Order 2 Rule 2 CPC may be thwarted by the present order Ext.P15. The counsel for the respondent submits that they have no objection to the said issue also being considered at the time of hearing and that there is no requirement for the hearing of the case to be delayed any further.
In the above circumstances, this original petition is disposed of directing the Commercial Court, Vatakara to hear and dispose of the suit untrammeled by the observations in Ext.P15 order and the petitioner will be at liberty to raise all arguments based on Order 2 Rule 2 CPC, which shall also be considered at the time of final hearing.
Sd/-
T.R.RAVI JUDGE
APPENDIX OF OP(C) 209/2024 PETITIONER EXHIBITS Exhibit P1 TRUE PHOTOSTAT COPY OF THE PARTNERSHIP DEED DATED 10-07-2017 Exhibit P 2 TRUE PHOTOSTAT COPY OF THE PLAINT O.S.NO.61 OF 2021 Exhibit P 3 TRUE PHOTOSTAT COPY OF THE WRITTEN STATEMENT IN O.S.NO.61 OF 2021 Exhibit P 4 TRUE PHOTOSTAT COPY OF THE AMENDED PLAINT CS 32/2022 Exhibit P 5 TRUE PHOTOSTAT COPY OF THE ADDITIONAL WRITTEN STATEMENT IN C.S.NO.32 OF 2022 Exhibit P 6 TRUE PHOTOSTAT COPY OF THE I.A.NO.1 OF
2024 IN CS 32/2022 Exhibit P 7 TRUE PHOTOSTAT COPY OF THE COUNTER TO I.A.NO.1 OF 2024 IN CS 32/2022 Exhibit P 8 TRUE PHOTOSTAT COPY OF THE I.A.NO.2 OF
2024 IN CS 32/2022 Exhibit P 9 TRUE PHOTOSTAT COPY OF THE COUNTER IN I.A.NO.2 OF 2024 IN CS 32/2022 Exhibit P 10 TRUE PHOTOSTAT COPY OF THE PLAINT AND WRITTEN STATEMENT IN O.S.NO.81 OF 2019 Exhibit P 11 TRUE PHOTOSTAT COPY OF THE WRITTEN STATEMENT IN O.S.NO.81 OF 2019 Exhibit P 12 TRUE PHOTOSTAT COPY OF THE JUDGMENT DATED
21-12-2019 IN O.S.NO.81 OF 2019 Exhibit P13 TRUE PHOTOSTAT COPY OF THE PLAINT IN O.S.NO.151 OF 2020 Exhibit P 14 TRUE PHOTOSTAT COPY OF THE WRITTEN STATEMENT IN O.S.NO.151 OF 2020 Exhibit P15 TRUE COPY OF THE ORDER DATED 18-01-2024 BY THE SUB COURT, VATAKARA
