High Court Kerala High Court

Satheeshkumaran vs Manjula on 10 September, 2009

Kerala High Court
Satheeshkumaran vs Manjula on 10 September, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 9659 of 2009(O)


1. SATHEESHKUMARAN,S/O.KRITHIAVASAN,
                      ...  Petitioner

                        Vs



1. MANJULA,D/O.BHARATHI,
                       ...       Respondent

2. SASIDHARAN,S/O.BALAKRISHNAN,

                For Petitioner  :SRI.M.R.RAJESH

                For Respondent  :SRI.G.S.REGHUNATH

The Hon'ble MR. Justice S.S.SATHEESACHANDRAN

 Dated :10/09/2009

 O R D E R
              S.S.SATHEESACHANDRAN, J.
                  -------------------------------
              W.P.(C).NO.9659 OF 2009 (O)
                -----------------------------------
       Dated this the 10th day of September, 2009

                      J U D G M E N T

The writ petition is filed seeking mainly the following

relief:

i. to issue a writ in the nature of
certiorari or any other writ, direction
or order calling for the records leading
to Ext.P7 order and quashing the same
and further allow Ext.P5 petition.

2. Petitioner is the defendant in O.S.No.111 of 2006 on

the file of the Munsiff Court, Varkala. The above suit is one

for injunction, and the respondents are the plaintiffs. First

plaintiff is none other than the sister of the petitioner.

Previously, there was a suit between the parties as O.S.No.233

of 1994 filed by the petitioner, in which, a decree for putting

up of a boundary in respect of his property was sought for.

From the decree passed in that suit, the parties therein, the

WPC.9659/09 2

present petitioner and the 1st respondent, both have preferred

appeals also and those appeals are now pending before the

Sub Court, Attingal. It is the case of the petitioner that the

subject matter involved in the appeals arising from the suit

O.S.No.233 of 1994 and also the present suit filed by the

respondent are one and the same, and so, he had moved an

application under Section 10 of the Code of Civil Procedure

for staying the present suit. That application was dismissed

by the court below vide Ext.P7 order. Propriety and

correctness of that order is challenged 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. The learned

counsel for the petitioner submits that in Ext.P7, none of the

grounds stated in his application contending as to why the

stay of the present suit is to be ordered under Section 10 of

the Code of Civil Procedure has been adverted to or

considered by the learned Munsiff. Identical and substantial

issues as involved in the present suit have been adjudicated in

the previous suit filed by him as O.S.No.233 of 1994 and the

challenge against the decree passed in the suit is pending in

WPC.9659/09 3

respective appeals preferred by him and respondents before

the Sub Court, Attingal. So much so, according to the counsel,

the trial of the present suit is liable to be stayed under Section

10 of the Code of Civil Procedure. The learned counsel for

the respondents submitted that twice the present suit was

decreed ex parte. Till the suit came up in the list for trial, at

the first instance, no application was moved for staying of the

suit under Section 10 of the Code of Civil Procedure, submits

the counsel. It is further submitted that previously another

writ petition was filed canvassing the very same relief now

urged in the present petition, and, at the time when the writ

petition came up for consideration, petitioner having remained

absent had been declared ex parte in the suit and stating that

ground, that writ petition was sought to be withdrawn. Ext.P8

is the copy of that judgment. Pursuant thereto, after getting

an order setting aside the ex parte decree, he had again

pressed into service the present application for staying of the

suit under Section 10 of the Code of Civil Procedure. The

learned counsel would further submit that the subject matter

involved in both the suits, the suit filed by the petitioner as

O.S.No.233 of 1994 and the present suit is entirely different

and the reliefs claimed are also different. In the previous suit,

WPC.9659/09 4

the subject matter was the property in which the petitioner

had obtained title and possession and the relief claimed was

only for putting up the boundaries on its southern and

northern side. Admittedly, the properties on the southern side

and the northern side of the petitioner’s property belong to

the respondents. The present suit filed by the respondents

relate to five cents of property situate on the northern side of

the petitioner’s property, which was not the subject matter in

the previous suit. The relief claimed in the present suit is one

for injunction simpliciter. By no stretch of imagination,

according to the counsel, it can be stated that the identical

issues are involved in both the suits.

4. Submissions made by the learned counsel for the

respondents, which remained uncontroverted, prima facie,

disclose that the issues covered by the present suit arising for

adjudication differ from the issues in the previous suit of the

petitioner, in the decision of which, appeals preferred by the

parties are pending for consideration. Petitioner has not made

out any ground for staying of the present suit under Section

10 of the Code of Civil Procedure. There is no impropriety or

illegality in the order passed by the court below declining his

WPC.9659/09 5

request to stay the trial of the suit.

Writ petition lacks merit, and it is dismissed.

S.S.SATHEESACHANDRAN
JUDGE

prp