IN THE HIGH COURT OF KERALA AT ERNAKULAM
AS.No. 880 of 1997()
1. BABY AJAYAKUMARI
... Petitioner
Vs
1. PHILIP
... Respondent
For Petitioner :SRI.V.N.SWAMINATHAN
For Respondent :SRI.JOHNSON P.JOHN
The Hon'ble MR. Justice V.RAMKUMAR
Dated :29/06/2009
O R D E R
V. RAMKUMAR , J.
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A.S. No. 880 of 1997
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Dated this the 29th day of June, 2009.
JUDGMENT
The plaintiff in O.S. No. 44 of 1990 on the file of the
Subordinate Judge’s Court, Cherthala is the appellant in this
appeal. The said suit was one for specific performance of Ext.A1
agreement allegedly executed by the defendant, Philip. The
appellant had also filed O.S. No. 558 of 1989 before the Munsiff’s
Court, Cherthala. The said suit was one for a prohibitory
injunction against the very same defendant in O.S. No. 44 of
1990 referred to above. Since the subject matter of the two
suits as well as the parties to the two suits were the same, O.S.
No. 558 of 1989 was ordered to be jointly tried along with O.S.
No. 44 of 1990 and accordingly O.S. No. 558 of 1989 was
transferred to the Sub Court, Cherthala where it was re-
numbered as O.S. No. 230 of 1991. In both the suits, common
issues were framed with regard to the issues which arose
substantially in both the suits. Findings were also recorded
against the common plaintiff in the two suits. As per common
judgment dated 22.03.1997, the learned Subordinate Judge
dismissed both the suits. Admittedly, the appellant/plaintiff has
not preferred any appeal against the judgment and decree
passed in O.S. No. 230 of 1991. If so, the findings recorded in
the common issues and the dismissal of O.S. No. 230 of 1991 will
operate as res judicata against this appeal preferred against O.S.
No. 44 of 1990, in the light of the decision of the Full Bench of
this Court reported in Janardhanan Pillai v. Kochunarayani
Amma (1976 KLT 279). The matter is also covered by the
subsequent decisions of the Supreme Court in Premier Tires
Limited v. The Kerala State Road Transport Corporation –
AIR 1993 SC 1202 and Ram Prakash v. Charan Kaur AIR 1997
SC 3760. In this view of the matter, this Court cannot entertain
this appeal which is barred by the principles of res judicata as
observed above. This appeal is accordingly dismissed. No costs.
Dated this the 29th day of June, 2009.
V. RAMKUMAR, JUDGE.
Rv
V. RAMKUMAR, J
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A.S. No.880 of 1997
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29th day of June, 2009.
JUDGMENT