High Court Kerala High Court

St.George’S Jacobite Syrian … vs Ouseph Cheriyan on 3 December, 2008

Kerala High Court
St.George’S Jacobite Syrian … vs Ouseph Cheriyan on 3 December, 2008
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 35613 of 2008(M)


1. ST.GEORGE'S JACOBITE SYRIAN CHURCH,
                      ...  Petitioner
2. K.P.PAILY, S/O.PAILY, AGED 68,
3. V.M.KURIAKOSE, AGED 49, S/O.MANI,

                        Vs



1. OUSEPH CHERIYAN, S/O.OUSEPH, AGED 56,
                       ...       Respondent

2. BINU THOMAS,S/O.THOMAS, AGED 25,

3. DEACON GEE VARGHESE KOCHUPARAMBIL,

4. FR.ELIAS JOHN, S/O.FR.M.C.JOHN, VICAR

5. C.G.JACOB, S/O.GEEVARGHESE KATHANAR,

6. T.P.JOHN, KIZHAKKUMCHERIL, MANNATHUR.

7. SKARIA PAILY, KUNNUMMEL, MANNATHUR.

8. GEORGE PETER, KOCHUPARAMBIL, MANNATHUR.

9. GEORGE PETER, KOCHUPARAMBIL,MANNATHUR.

10. V.K.JOHN, VANAPPURATHU, MANNATHUR.

11. SIMON MOOMUGALIL, MANNATHUR.

12. SHIBU KURIAN, VADACKEL, DILAPPYRAM.PO.

13. JOSE K.PRASAD, KOCHUPARAMBIL,

14. BABU ABRAHAM, KANNAMTHORATHU, MANNATHUR.

15. BABU ABRAHAM, MADUTHIKUDIYIL,MANNATHUR.

16. BENNY PAILY, NEDUMTHADHIL, MANNATHUR.

17. K.C.THANKACHAN, MARATHANAKUNNEL,

18. PHILIP SKARIA, VAZHAKKULAYIL, MANNATHUR.

19. SABU A.I, ARITHADATHIL, MANNATHUR.

20. JOBY VARGHESE, PUTHENPURACKAL,

21. JOHNSON JOSEPH, CHERAKKALAKUDIYIL,

22. BINU KURIAKOSE, ARITHADATHIL, MANNATHUR.

23. SONIL V.J.VATTAPARAMBIL, MANNATHUR.

24. K.M.MATHAI, KUDAPPILLIL, MANNATHUR.

25. JINTO KURIAN, MALAKUDIYIL, MANNATHUR.

26. K.C.ALIAS, MARUTHANAKUNNEL, MANNATHUR.

27. BABU JOHN, S/O.ULAHANNAN, AGED 38,

                For Petitioner  :SRI.JIJO THOMAS

                For Respondent  : No Appearance

The Hon'ble MR. Justice K.P.BALACHANDRAN

 Dated :03/12/2008

 O R D E R
              K.P.BALACHANDRAN, J.
          ------------------------------------------------
                W. P. C. No.35613 of 2008
          ------------------------------------------------
          Dated this the 3rd day of December, 2008

                        JUDGMENT

Heard the counsel for the petitioners.

2. This Writ Petition is filed assailing

Ext.P5 order passed by the court below

refusing to stay the suit O.S.41/03 on its

file under Section 10 of the C.P.C.

3. Petitioners who are defendants 1, 3, 4

and 5 in the suit filed I.A.3388/08 for

staying the suit under Section 10 of the C.P.C

till disposal of A.S.176/02 and it is that

I.A. that was dismissed vide Ext.P5 order

refusing to stay the suit as prayed for.

Counsel for the petitioners submits that the

petitioners are not parties in A.S.176/02. If

the petitioners are not parties to the said

suit the fact that the said appeal is pending

is not a matter of concern for the petitioners

W. P. C. No.35613 of 2008 -2-

and a disposal of that appeal will not be

having any bearing in the present suit,

O.S.41/03. Counsel further submits that the

suit O.S.11/97 from the judgment against which

is A.S.176/02 filed was a suit filed under

Section 90 of the C.P.C and under Order I Rule

8 and that the suit being in a representative

capacity the finding in that suit will have

bearing on the issues involved for decision in

O.S.41/03 as well. All the same, he submits

that it was for non-compliance of the

requisite formalities to be complied with in a

suit under Order I Rule 8 C.P.C that the said

suit O.S.11/97 was dismissed. If so, obviously

there is no meaning in saying that the said

suit was a representative suit. The court

below has observed in para 4 of Ext.P5 order

as follows:-

W. P. C. No.35613 of 2008 -3-

“The subject matter and relief sought for in this
suit is different from O.S.11/97. So the final decision in
the previous suit would not operate as res judicata in
the subsequent suit. Cause of action in both suits are
also different. So there is no possibility of two
divergent and contradictory verdicts by one and same
court in respect of the same relief. So I find no
compelling circumstances to stay this suit u/s 10 CPC
till disposal of A.S.176/02 pending before the Hon’ble
High Court.”

4. The dismissal of I.A.3388/08 vide

Ext.P5 order in the circumstances, cannot be

faulted and there is no merit in this Writ

Petition.

              5.       This       Writ      Petition         is      hence,

      dismissed.




                                                     K.P.BALACHANDRAN,
                                                                       JUDGE
      kns/-