Sulaiman Assanar Kunju vs Ansarudeen
2023 Latest Caselaw 9540 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
          THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
    TUESDAY, THE 5TH DAY OF SEPTEMBER 2023 / 14TH BHADRA, 1945
                      OP(C) NO. 1622 OF 2023
  AGAINST THE ORDER IN OS 288/2023 OF ADDITIONAL MUNSIFF COURT,
                            NEDUMANGAD
PETITIONER/PETITIONER IN I.A.4/2023 IN O.S.288/2023/
DEFENDANT IN O.S.:

          SULAIMAN ASSANAR KUNJU, AGED 60 YEARS, S/O. HANEEFA,
          RESIDING AT T.C. 9/113(3), G. 5G STREET, S.S KOVIL
          STREET, KOWDIAR P.O., TIRUVANANTHAPURAM, PIN - 695003

          R.LAKSHMI NARAYAN
          R.RANJANIE

RESPONDENT/RESPONDENT IN I.A.4/2023 IN O.S.288/2023/
PLAINTIFF IN O.S.:

          ANSARUDEEN, AGED 53 YEARS, S/O. HANEEFA, MANAGING
          DIRECTOR M/S. LAMCY ENTERPRISES PRIVATE LIMITED,
          MANPURAM VILLA, KOLLANKAVU, PAZHAKUTTY P.O, NEDUMANGAD,
          THIRUVANANTHAPURAM, PIN - 695541


     THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 05.09.2023,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 OP(C) NO. 1622 OF 2023
                                   2


                             JUDGMENT

Sri.R.Lakshmi Narayan - learned counsel for the

petitioner, projected a personal angst, coupled with that of his

client, saying that, pending this original petition - in which

defects were noted by the Registry because of a mistake

committed by the Trial Court in recording the number of the

suit - his client had to face the ignominy of his business being

broken open in terms of Ext.P7 impugned order, being denied

effective remedy. He then alleged that this has been done in a

case where the Suit itself is not maintainable; and therefore,

pleaded that this Court direct the Trial Court to consider the

said issue as a preliminary one.

2. Though this Court certainly finds empathy for the

plight of the petitioner, the fact remains that the Suit had

been instituted by the respondent and numbered by the Trial

Court, in which Ext.P7 order has been issued. Whatever be

the reasons now said by the petitioner, the fact remains that

action pursuant to Ext.P7 has now been completed. I do not

think, therefore, that this Court is now required to look into

its merits, except to clarify that any observation therein can

only be seen to be preliminary or prima facie. This is OP(C) NO. 1622 OF 2023

because, if the petitioner intends to raise the question of

maintainability of the Suit, certainly, it should be open to him

to do so as per law; and it cannot be foreclosed merely

because the Trial Court has made certain observations in

Ext.P7.

In the afore circumstances, without entering into the

merits of any of the rival contentions at this stage, I close this

original petition; however, clarifying that the right of the

petitioner/defendant to raise any contention, including qua the

maintainability of the Suit, is left open.

Sd/- DEVAN RAMACHANDRAN JUDGE stu OP(C) NO. 1622 OF 2023

APPENDIX OF OP(C) 1622/2023

PETITIONER EXHIBITS

Exhibit P-1 TRUE COPY OF THE PLAINT IN THE SUIT O.S NO. 288/2023 ON THE FILE OF THE ADDITIONAL MUNSIFF COURT, NEDUMANGAD

Exhibit P-2 TRUE COPY OF THE APPLICATION IA NO.1/2023 IN O.S. NO 288 OF 2023

Exhibit P-3 TRUE COPY OF THE OBJECTION DATED 4.04.2023 FILED BY THE PETITIONER TO EXT. P2

Exhibit P-4 TRUE COPY OF THE REPORT DATED 13.04.2023, SUBMITTED BY THE ADVOCATE COMMISSIONER IN O.S. NO 288 OF 2023

Exhibit 5 TRUE COPY OF THE APPLICATION IA NO.4/2023, FILED BY THE RESPONDENT IN EXT.P1 SUIT

Exhibit P-6 TRUE COPY OF THE OBJECTION DATED 27.06.2023, FILED BY THE PETITIONER HEREIN TO EXT. P-5 APPLICATION

Exhibit P-7 TRUE COPY OF THE ORDER DATED 13.06.2023 IN IA NO. 4/2023 IN O.S.NO.288/2023 ON THE FILE OF THE ADDITIONAL MUNSIFF COURT, NEDUMANGAD