Judgment:
S.S. Satheesachandran, J.
1. The above writ petition and the revision petition are filed by the defendant in O.S. No. 107 of 2005 on the file of the Munsiff-Magistrate Court, Pattambi. Respondent in both the petitions is the plaintiff in the above suit. Suit is one for damages for a sum of Re. 1/- for the alleged publication of defamatory statement against the plaintiff/respondent by the defendant. Since the question arising for consideration in the writ petition and also in the revision petition are interconnected, and after being heard together, they are disposed of by this common judgment/order.
2. The petitioner/defendant in his written statement among other contentions challenged the jurisdiction of the court to entertain the suit contending that no part of the cause of action arose within its jurisdiction. After settling the issues in the suit, the issue relating to jurisdiction was considered, preliminarily, and the learned Munsiff after hearing the counsel on both sides found that the court has jurisdiction to entertain the suit and answered that issue accordingly. Challenging that order of the learned Munsiff, petitioner has filed the above revision. Plaintiff filed a replication in answer to the contentions taken by the petitioner/defendant in his written statement, the reception of which was objected to by the defendant. Learned Munsiff after hearing both sides passed an order accepting the replication reserving the question whether any new pleading has been brought in thereunder to be relegated for consideration at the stage of trial. Propriety and correctness of that order Is impeached in the writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India.
3. I heard the counsel on both sides
4. Inviting my attention to the copy of the plant in the suit, which is produced as Ext. P2 in the writ petition, the learned Counsel for the petitioner submitted that nowhere in the plaint, there is any allegation as to the publication of any defamatory statement against the respondent/plaintiff within the jurisdiction of the court in which the suit had been instituted. But, only a vague statement that an advocate notice containing a defamatory statement was sent to him in his address within the jurisdiction of that court and so received by him. An advocate notice directly sent to the defendant, even if it contains defamatory statement without any publication thereof, would not entitle him to file a suit for damages for personal injuries in the court within which he received such notice in order to vest with the court jurisdiction to entertain such a suit, submits the learned Counsel. When the plaint in the suit did not disclose the cause of action as having arisen within the jurisdiction of the court within which the suit was instituted and that was specifically challenged in the written statement by the defendant it is the submission of the counsel that the plaintiff filed a replication in which under the guise of furnishing a reply to the contentions raised in the written statement, a new cause of action is incorporated by Way of fresh pleadings that the copies of the notice received by the plaintiff were also received by his daughter and also son-in-law, both residing within the jurisdiction of the court in which the suit was instituted and receipt of such notice, both containing defamatory statements against them, would confer jurisdiction in the court in which it was instituted. New pleading sought to be introduced by replication, that too, advancing a fresh cause of action not disclosed in the plaint despite being objected to was accepted by the court under the impugned order challenged in the writ petition and that gave rise to grave prejudice and injury, is the further submission of the counsel contending that the replication of the plaintiff is liable to be rejected reversing Ext.P6 order of the learned Munsiff. Learned Counsel for the petitioner contended mat since the court lacks jurisdiction which depended solely on the personal injury of defamation allegedly suffered by plaintiff within its territory, and that being absent, the plaint should have been returned for presentation before the proper court. So much so, the orders passed by the court on the question of jurisdiction and also the acceptance of pleadings which are challenged in the revision and the writ petition respectively, are liable to be reversed. On the other hand, the learned Counsel for the respondent/plaintiff contended that there is no merit in the objections raised on the question of jurisdiction and also the acceptance of the replication. No new cause of action is brought in by way of replication but, only furnishing a reply to the untenable contentions raised by the defendant in the written statement, submits the counsel. Pointing out Section 19 of the Code of Civil Procedure is applicable in the determination of jurisdiction for suing the relief of damages claimed by the plaintiff for the personal wrong done to him on account of defaming of his reputation by issue of advocate notice containing defamatory statement, copies of which were also issued to his daughter and son - in - law, both of them residing within the jurisdiction of the court in which the suit was instituted, learned Counsel submitted that there is no merit in the contention that the court lack jurisdiction to entertain the suit.
5. After having heard the counsel on both sides at length and perusing the orders passed by the learned Munsiff with respect to the finding entered on the preliminary issue regarding the jurisdiction of the court to entertain the suit and also acceptability of the replication filed by the plaintiff, both of which were challenged by the defendant, I find that it may be inappropriate for this Court to express any opinion on those questions at this stage, after examining the materials produced as it would have a decisive effect in the trial of the suit. Of course, if the challenge raised as to jurisdiction is prima facie found appealing, which is not so, the order passed by the learned Munsiff holding that the court has jurisdiction to entertain the suit should be looked into with reference to the plaint. The plaint only states of receiving an advocate notice containing defamatory statements by the plaintiff within the jurisdiction of the court and as such that not amount to publication and there is no cause of action for the plaintiff to institute such suit within the jurisdiction of that court where he resides the claim the relief of damages on the ground of personal injuries suffered, is the basis by which the defendant contends that the court lack jurisdiction to entertain the suit. Any dilation by this Court as to what would constitute wrong done with reference to personal injury as falling within the ambit of Section 19 of the Code of Civil Procedure to confer a court with jurisdiction, at this stage, before the trial of the suit, may not be proper and correct. As indicated earlier, such exercise has to be avoided. All the same, it has to be pointed out wrong done in respect of a personal injury includes not only the place where the wrong done, but also, the places where its consequences ensued. Admittedly, the defendant issued advocate notice to various visual media and a copy of which was sent to plaintiff, his daughter and son-in-law, all of whom reside within the jurisdiction of the court in which the suit was instituted. The notice contained defamatory statement damnifying the reputation of the plaintiff is his case and it was received by him within the jurisdiction of the court. In the replication also, receipt of the notice by the daughter and son in-law was mentioned and it amounts to entertaining of a new cause of action, is the argument canvassed with reference to the challenge already raised in the written statement that mere receipt of a notice as stated in the plaint would not give rise to a cause of action for filing the suit to claim damages for defamation. Whether the consequences arising from the wrong done should be specifically stated in the plaint to sustain a suit for damages and how far and in what manner the particulars of publication are to be spelt out to confer jurisdiction on the court in which it is filed are all matters to be looked into at the trial of the suit and not, at this stage, solely on the basis of the microscopic analysis of the allegations in the plaint.
6. Sub-rule (2) of Rule 2 of Order XIV of the Code of Civil Procedure would show that a court may try a issue as a preliminary issue, provided, it relates to the jurisdiction of the court of a bar to the suit under law for the time being in force. It is crystal clear from the above provision that only an issue of law which goes to the very root 6f the matter affecting the jurisdiction or an issue which interdicts the entertainability of the suit under any law for the time being in force, that can be tried preliminarily postponing the settlement of other issues. The provision is discretionary and the court is not bound to try an issue as preliminary issue even if it is so canvassed by the defendant. So far as the question raised as to lack of jurisdiction such challenge has to be looked into whether it is on account of factual allegations in the plaint or of inherent lack of jurisdiction. In the latter case alone it is an issue as one of law, but in the former case, it is necessary to decide the factual controversy to resolve that issue. Such a case does not fall under a pure question of law, as envisaged in Clause (a) or (b) of Sub-rule (2) of Rule 2 of Order XIV of the Code of Civil Procedure. This Court- in Thiruvambadi Rubber Co. Ltd. v. Damodaran Nair 1984 KLT 586 analysing the above question has held thus:'....it is only an issue which goes to the root of the suit and capable of being decided without recording evidence that must be tried as a preliminary issue in the first instance under Rule 2 of Order XIV'. The facts presented in the case would disclose that the challenge raised on the question of jurisdiction in fact is a mixed question of law and fact which can be resolved only in the trial of the suit after affording opportunity to both parties to lead evidence. The finding entered by the learned Munsiff on the question of jurisdiction is therefore liable to be reversed leaving the question open for adjudication with other issues at the trial of the suit
7. So far as the order of the learned Munsiff accepting the replication, I find the order passed mere of clearly indicate the replication was accepted leaving open the question whether any fresh cause of action has been introduced by such replication shall be considered at the trial of the suit. No prejudice has been suffered by the defendant in accepting the replication subject to the reservation so made enabling him to canvass his challenges at a later stage, at the trial of the suit. The challenge made against the acceptability of the replication in the writ petition fails and the writ petitions is only to be dismissed.
Writ petition is dismissed and the revision is disposed, subject to the observations made above.