Virumandi vs Prakash

Type Court Judgment Court Kerala Decided Nov 30, 2021

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https://sooperkanoon.com/case/1706560

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Citation: sooperkanoon.com/1706560
Court: Kerala High Court
Judge: Honourable Mr.Justice V.G.Arun
Decided On: Nov 30, 2021
Case Number: OP(C)/2216/2021

Parties & Advocates

Appellant / Petitioner

Virumandi

Respondent

Prakash

Excerpt

.....fairly submits that in the light of the declaration of law by the hon'ble supreme court in nusli neville wadia v. ivory properties and another [2020 (6) scc 557] holding that the bar underorder ii rule 2 of cpc, being a mixed question of facts andlaw, need not be considered as a primarily issue, the finding of the trial court on the question of maintainability raised by the petitioner cannot be faulted. learned counsel further submits that the petitioner has already moved an interlocutory application seeking permission to incorporate the plea of bar under order ii rule 2 and ext.p5 impugnedorder should not stand in the way of the trial courtconsidering that application independently. accordingly, the original petition is dismissed, without prejudice to the petitioner’s right to seek amendment of the written statement, by incorporating the plea with respect toorder ii rule 2 cpc. the findings in ext.p5 order ordismissal of this original petition, shall not stand in the way of the petitioner's application being considered independently. sd/- v.g.arun judge rk appendix of op(c) 2216/2021 petitioner exhibits exhibit p1 true copy of the plaint dated 04.02.2012 in os no.25 of 2019 in the file of idukki district exhibit p2 true copy of the plaint dated 10.06.2011in os no.27 (formerly os no.137 of 2011 in the file of hon. munsiff at devikulam), now pending in the file of idukki district as os no.27 of 2017 exhibit p3 true copy of no.ia no.1 of 2021 dated 3.11.2021, filed by the petitioner in os no.25 of 2019 in the file of hon. subordinate judge at devikulam, idukki district exhibit p4 true copy of the objections dated 09.11.2021 to ext.p3 application, filed by the respondent in os no.25 of 2019 in the file of hon.subordinate judge at devikulam , idukki district exhibit p5 true copy of the order dated dated 15.11.2021 passed in ia no.1 of 2021 (filed by the petitioner in os no.25 of 2019 in the file of hon. subordinate judge at devikulam, idukki district)

Full Judgment

IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE V.G.ARUN TUESDAY, THE 30TH DAY OF NOVEMBER 2021 / 9TH AGRAHAYANA, 1943 AGAINST THE ORDER/JUDGMENT IN IA 1/2021 IN OS 25/2019 OF SUB COURT DEVIKULAM PETITIONER/S/PETITIONER IN I.A.NO.1 OF 2021/DEFENDANT:
VIRUMANDI AGED 70 YEARS, S/O.MAYANADI THEVAR, RESIDING AT WARD NO.1 MUNNANPATTY, THEVARAM TOWN, THENI DISTRICT, TAMIL NADU, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER SON, MANIKANDAN, AGED 40, S/O. VIRUMANDI, RESIDING AT HOUSE NO.29/A1, THITTASILIA WEST, VENGAMEDU P.O., KARUR, TAMIL NADU, PIN-639 006, (ORIGINAL POWER ATTORNEY IS PRODUCED BEFORE THE COURT BELOW IN OS 25 OF 2019) BY ADVS. K.B.PRADEEP HARISANKAR R
RESPONDENT/S/RESPONDENT IN I.A.No.1 OF 2021/PLAINTIFF: PRAKASH S/O. GOVINDARAJAN, RESIDIG AT X/84, GNG STREET, AMBATHUR, CHENNAI,PIN-600053 THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 30.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

JUDGMENT

Dated this the 30th day of November, 2021 Learned Counsel for the petitioner fairly submits that in the light of the declaration of law by the Hon'ble Supreme Court in Nusli Neville Wadia v. Ivory Properties and Another [2020 (6) SCC 557] holding that the bar under

Order II Rule 2 of CPC, being a mixed question of facts and

law, need not be considered as a primarily issue, the finding of the trial court on the question of maintainability raised by the petitioner cannot be faulted. Learned Counsel further submits that the petitioner has already moved an interlocutory application seeking permission to incorporate the plea of bar under Order II Rule 2 and Ext.P5 impugned

order should not stand in the way of the trial court

considering that application independently. Accordingly, the original petition is dismissed, without prejudice to the petitioner’s right to seek amendment of the written statement, by incorporating the plea with respect to

Order II Rule 2 CPC. The findings in Ext.P5 order or

dismissal of this original petition, shall not stand in the way of the petitioner's application being considered independently. Sd/- V.G.ARUN JUDGE RK APPENDIX OF OP(C) 2216/2021 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE PLAINT DATED 04.02.2012 IN OS NO.25 OF 2019 IN THE FILE OF IDUKKI DISTRICT Exhibit P2 TRUE COPY OF THE PLAINT DATED 10.06.2011

IN OS NO.27 (FORMERLY OS NO.137 OF 2011 IN THE FILE OF HON. MUNSIFF AT DEVIKULAM), NOW PENDING IN THE FILE OF IDUKKI DISTRICT AS OS NO.27 OF 2017 Exhibit P3 TRUE COPY OF NO.IA NO.1 OF 2021 DATED 3.11.2021, FILED BY THE PETITIONER IN OS NO.25 OF 2019 IN THE FILE OF HON. SUBORDINATE JUDGE AT DEVIKULAM, IDUKKI DISTRICT Exhibit P4 TRUE COPY OF THE OBJECTIONS DATED 09.11.2021 TO EXT.P3 APPLICATION, FILED BY THE RESPONDENT IN OS No.25 OF 2019 IN THE FILE OF HON.SUBORDINATE JUDGE AT DEVIKULAM , IDUKKI DISTRICT Exhibit P5 TRUE COPY OF THE ORDER DATED DATED 15.11.2021 PASSED IN IA NO.1 Of 2021 (FILED BY THE PETITIONER IN OS NO.25 OF 2019 IN THE FILE OF HON. SUBORDINATE JUDGE AT DEVIKULAM, IDUKKI DISTRICT)

Same Court & Year Kerala · 2021 Same Parties Virumandi vs Prakash Same Judge Honourable Mr.Justice V.G.Arun