High Court Kerala High Court

Jagadeesha vs Smt. Bhagirathi on 22 February, 2010

Kerala High Court
Jagadeesha vs Smt. Bhagirathi on 22 February, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 731 of 2010(O)


1. JAGADEESHA, AGED 40 YEARS,
                      ...  Petitioner

                        Vs



1. SMT. BHAGIRATHI,
                       ...       Respondent

2. DAMODARA, S/O.LATE VASUDEVA HEGDE,

3. SAROJINI, D/O.LATE VASUDEVA HEGDE,

4. SMT.HEMAVATHI, D/O.LATE VASUDEVA HEGDE,

5. MEENAKSHI, D/O.LATE VASUDEVA HEGDE,

6. RAMANI, D/O.LATE VASUDEVA HEGDE,

7. SURENDRA, S/O.LATE VASUDEVA HEGDE,

8. VASANTHA KUMAR, S/O.LATE VASUDEVA HEGDE,

9. JAYAPALA, S/O.RAJAMANI,

10. U.SURENDRA HEGDE,

                For Petitioner  :SRI.K.G.GOURI SANKAR RAI

                For Respondent  : No Appearance

The Hon'ble MR. Justice P.BHAVADASAN

 Dated :22/02/2010

 O R D E R

P.BHAVADASAN, J.

————————————-
WP(C) No.731 of 2010-O

————————————-
Dated 22nd February 2010

Judgment

In this Petition filed under Article 227 of the

Constitution of India, the petitioner challenges the order

dated 20.11.2009 in IA No.1979/09 in OS No.10/09 before

the Principal Munsiff’s Court, Kasaragod.

2. The petitioner instituted OS No.10/09 which

was a suit for partition of the plaint schedule property. The

petitioner and respondents 1 to 8 herein are said to be the

co-owners of the property. Subsequently, respondents 9

and 10 were also impleaded as they also claimed right over

the said property. The 10th defendant contended that he

purchased 2/9th share of the plaintiff and the 8th defendant.

In the written statement, the 10th defendant pleaded that

the 8th defendant had filed a suit as OS No.60/96 on the file

of the Sub Court, Kasaragod for cancellation of a sale deed

alleged to have been executed by the 7th defendant as

Power of Attorney Holder of the 8th defendant in favour of

WPC 731/10 2

the 10th defendant. That suit was dismissed and an appeal

was pending as AS No.873/98. When OS No.10/09 was

listed for trial, the 10th defendant fled IA No.1087/09 under

S.10 CPC, pointing out that the issues involved in the earlier

suit and the present suit are one and the same and

therefore, the present suit may be stayed. The petitioner

resisted the petition pointing out that there is no

justification in doing so and the petitioner was not at all a

party to that proceedings. It was also pointed out that the

issues involved in the present suit are entirely different and

therefore, stay was not warranted. The Court below allowed

the petition and granted stay. The only fact which

persuaded the Court to grant stay was that it was found

that the property involved in the two suits are one and the

same.

3. The above finding is not sustainable in law.

The ingredients necessary to attract S.10 are not available

in this case. The test is to see if the decision in one suit will

operate as res judicata in the other. The issues in both the

suits must be substantially same and the parties should

WPC 731/10 3

also be same or at least claiming under them. These

ingredients are not satisfied in the present case. The Court

below, therefore, was not justified in granting stay of the

trial of OS No.10/09 pending before the said Court.

4. In the result, this Petition is allowed. The

impugned order is set aside and the Court below is directed

to go on with the trial of the case.





                                  P.BHAVADASAN, JUDGE



sta

WPC 731/10    4