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PAIKKATTU MAMMED KOYA HAJI v. PUTHIYA MALIYAKKAL NAFEESABI - WP(C) No. 19447 of 2006(M)  RD-KL 7707 (12 April 2007)
IN THE HIGH COURT OF KERALA AT ERNAKULAMWP(C) No. 19447 of 2006(M)
1. PAIKKATTU MAMMED KOYA HAJI,
1. PUTHIYA MALIYAKKAL NAFEESABI,
2. ASSARI THODUKAYIL SAKEENA,
3. SAHINA, D/O. MOIDEENKUNHI,
For Petitioner :SRI.K.V.SOHAN
For Respondent :SRI.V.V.SURENDRAN
The Hon'ble MR. Justice K.P.BALACHANDRAN
O R D E R
K.P.BALACHANDRAN, J.W.P. (C ) No. 19447 of 2007
Dated this the 12th day of April, 2007.
This writ petition is filed challenging Ext.P3 order passed by the Sub Judge, Kozhikode directing the maintainability of the suit being heard as a preliminary point. It is vehemently contended before me by the counsel for the petitioner/plaintiff that in order to have the maintainability of the suit heard as a preliminary point a contention regarding the maintainability of the suit should have been raised by the defendants in the written statement and an issue also should have been raised as regards the maintainability of the suit. The counsel for the respondents supports Ext.P3 order posting the case for preliminary hearing on the question of maintainability of the suit and submits that contention regarding maintainability of the suit is raised in the written statement and on the basis thereof an issue as to the maintainability of the suit is also raised in the suit.
2. The petitioner/plaintiff has no right to contend that issue regarding the maintainability of the suit shall not be heard as a preliminary issue but the trial has to be conducted and then only the question as to maintainability can be considered. Of course, if the trial court feels that the maintainability of the suit is a matter which according to him cannot be considered as a preliminary issue and deserves to be considered only at a latter stage, the trial court can defer the matter to be considered at a subsequent stage. But all the same, when the trial court decides to have the maintainability of the suit being heard as a preliminary issue the plaintiff cannot insist or dictate that only after trial the matter can be considered. This writ petition, in the circumstances, is devoid of merit and is dismissed.
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