P.S.Rejni vs G.R.Rajesh
2021 Latest Caselaw 4208 Ker

            IN THE HIGH COURT OF KERALA AT ERNAKULAM

                              PRESENT

            THE HONOURABLE MR. JUSTICE SATHISH NINAN

   THURSDAY, THE 04TH DAY OF FEBRUARY 2021 / 15TH MAGHA,1942

                        OP(C).No.183 OF 2021

AGAINST THE ORDER DATED 20.11.2020 IN IA 4326/2015 IN OS 39/2014
            OF 1ST ADDL. SUB COURT, THIRUVANANTAPURAM

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PETITIONERS/DEFENDANTS:

      1      P.S.REJNI
             AGED 70 YEARS
             WIFE OF LATE GOPINATHAN, TC 24/615, HOUSE NO. 8
             ELANGAM NAGAR, THYCAUD P.O,
             THIRUVANANTHAPURAM PIN 695 014

      2      G.R AJESH,
             AGED 45 YEARS
             SON OF OF LATE GOPINATHAN, TC 24/615, HOUSE NO. 8
             ELANGAM NAGAR, THYCAUD P.O, THIRUVANANTHAPURAM PIN
             695 014

      3      G.R GEETHANJALI,
             AGED 36 YEARS
             DAUGHTER OF OF LATE GOPINATHAN, TC 24/615,
             HOUSE NO. 8 ELANGAM NAGAR, THYCAUD P.O,
             THIRUVANANTHAPURAM PIN 695 014

             BY ADVS.
             SRI.V.SURESH
             SRI.G.SUDHEER
             SRI.R.HARIKRISHNAN (H-308)

RESPONDENT/PLAINTIFF:

             G.R.RAJESH
             AGED 52 YEARS
             SON OF LATE GOPINATHAN, SREENILAYAM, TILE FACTORY
             ROAD, AMARAVILA P.O,
             THIRUVANANTHAPURAM PIN 695 122

             R1 BY ADV. SRI.R.SUNIL KUMAR
             R1 BY ADV. SMT.A.SALINI LAL

     THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 04.02.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
                       SATHISH NINAN, J.
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                   O. P. (C) No.183 of 2021
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            Dated this the 4th day of February, 2021

                                JUDGMENT

IA 4326/2015 was filed by the petitioners-

defendants praying that, plea regarding maintainability of the suit and limitation be

considered as preliminary issues. The trial court

dismissed the application relegating the

consideration of the issues to trial. Challenging

the order, this original petition is filed.

2. The suit is one for partition. The

contention of the petitioners is that the plaintiff

had filed an earlier suit for partition as OS

1124/2008, which was returned for presentation

before the proper court; however, the plaintiff

has, without representing the plaint, instituted

another suit. The second suit is not maintainable,

is the contention on maintainability. Since no

evidence is necessary on the above, it is only

proper that the trial court considers the said

contention regarding maintainability as a O. P. (C) No.183 of 2021

preliminary issue.

3. As regards the plea of limitation, it being

a mixed question of law and fact, the trial court

was right in relegating it to trial.

In the result, this original petition is

allowed in part. The order impugned, in so far as

it refused consideration of issue regarding

maintainability of the suit as a preliminary issue,

is set aside. The trial court shall consider the

said issue as a preliminary issue. The order

impugned will stand modified to the above extent.

Sd/-

SATHISH NINAN JUDGE

kns/-

//True Copy// P.S. to Judge OP(C).No.183 OF 2021

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE PLAINT AS OS NO. 1124 OF 2008 FILED BY THE RESPONDENT BEFORE THE MUNSIFF COURT, THIRUVANANTHAPURAM DATED 25-06-2008

EXHIBIT P2 TRUE COPY OF THE WRITTEN STATEMENT IN OS NO. 1124 OF 2008 FILED BY THE PETITIONERS BEFORE THE MUNSIFF'S COURT, THIRUVANANTHAPURAM DATED 15-10-2008

EXHIBIT P3 TRUE COPY OF THE PETITION FILED BY THE RESPONDENTS IA NO. 3508 OF 2009 IN O.S NO. 1124/2008 BEFORE THE MUNSIIFF'S COURT, THIRUVANANTHAPURAM DATED 21-05-2009

EXHIBIT P4 TRUE COPY OF ADDITIONAL WRTITTEN STATEMENT FILED BY THE PETITIONERS IN OS NO. 1124 OF 2008 BEFORE THE MUNSIFF COURT,

EXHIBIT P5 TRUE COPY OF THE ORDER DATED 24-07-2010 IN IA NO. M5851 OF 2009 IN OS 1124/2008 OF THE ADDITIONAL MUNSIFF COURT-II, THIRUVANANTHAPURAM.

EXHIBIT P6 TRUE COPY OF THE PLAINT AS OS NO. 39 OF 2014 FILED BY THE RESPONDENT BEFORE THE SUB COURT, THIRUVANANTHAPURAM DATED 18-2-2014

EXHIBIT P7 TRUE COPY OF THE WRITTEN STATEMENT DATED 17-11-2014 FILED BY THE PETITIOENRS AS OS NO. 39 OF 2014 BEFORE THE SUB COURT, THIRUVANANTHAPURAM.

EXHIBIT P8 TRUE COPY OF THE IA NO. 4326 OF 2015 FILED BY THE PETITIONERS AS OS NO.39 OF 2014 BEFORE THE SUB COURT, THIRUVANANTHAPURAM DATED 16.11.2015.

EXHIBIT P9 TRUE COPY OF THE STATEMENT OF OBJECTION IN OS NO 39 OF 2014 FILED BY THE RESPONDENT BEFORE THE SUB COURT, THIRUVANANTHAPURAM

EXHIBIT P10 TRUE COPY OF THE IA NO. 319 OF 2017 FILED BY THE RESPONDENT AS OS NO. 39 OF 2014 BEFORE THE SUB COURT, THIRUVANANTAPURAM DATED 19.01.2017.

EXHIBIT P11 TRUE COPY OF THE ADDITIONAL WRITTEN STATEMENT DATED 17.2.2017 FILED BY THE PETITIONERS AS OS NO. 39 OF 2014 BEFORE THE SUB COURT, THIRUVANANTHAPURAM.

EXHIBIT P12 TRUE COPY OF THE ORDER DATED 20.11.2020 IN IA NO. 4326/2015 IN OS NO. 39/2014 OF THE FIRST ADDITIONAL SUB COURT, THIRUVANANTHAPURAM.

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