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Kerala High Court
Damodaranunni vs Kunchi on 29 January, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 2862 of 2010(O)


1. DAMODARANUNNI, S/O. ACHUTHAN NAIR,
                      ...  Petitioner

                        Vs



1. KUNCHI, W/O. CHAMY, AGED 62 YEARS,
                       ...       Respondent

2. KRISHNANKUTTY, S/O. SUBADRAMA,

                For Petitioner  :SRI.JOHNSON P.JOHN

                For Respondent  : No Appearance

The Hon'ble MR. Justice V.RAMKUMAR

 Dated :29/01/2010

 O R D E R
                         V. RAMKUMAR, J.
                 * * * * * * * * * * * * * * * * * *
                    W.P.(C) NO. 2862 of 2010
                * * * * * * * * * * * * * * * * * *
                        Dated: 29-01-2010

                            JUDGMENT

The Writ Petitioner is the plaintiff in O.S. No. 31 of 2007 on

the file of the Munsiff’s court, Alathur . The said suit is one for a

perpetual injunction restraining the defendants therein from

trespassing into the plaint schedule properties. Prior to that the

petitioner had filed another suit O.S. No. 2 of 2006 on the file of

the very same court seeking A perpetual injunction against the

defendant therein who are not the defendants in O.S. No. 31 of

2007 in respect of the same property. O.S. No. 2 of 2006 was

dismissed by the learned Munsiff, after trial and aggrieved by the

judgment and decree passed therein the petitioner has filed an

appeal as A.S. No. 26 of 2007 before the District Court,

Palakkad. In the year 2009, the petitioner filed I.A. No. 1103 of

2009 before the Munsiff’s Court Alathur seeking a stay of O.S. 31

of 2007 till the disposal of A.S. No. 26 of 2007 pending before

the District court, Palakkad alleging that if O.S. No. 31 of 2007 is

W.P. (C) No. 2862 of 2010 -:2:-

allowed to be proceeded with there was a possibility of the

conflicting decrees being passed in the two suits and that the

defendants in O.S. No. 31 of 2007 are the assignees from the

defendants in O.S. 2 of 2006. The Court below as per Ext.P7 order

dated 15-08-2009 dismissed the said application for stay. Hence,

this Writ Petition.

2. In the first place, the causes of action alleged in both

the two suits are different. The defendants in both the suits

instituted by the petitioner are also different. Eventhough it is

alleged that defendants in O.S. No. 31 of 2007 are the assignees

from the defendants in O.S. No. 2 of 2006 the court below found

that their assignment was even prior to the institution of O.S.

2/2006. Under these circumstances, the court below cannot be

found fault with in not staying O.S. No. 31 of 2007 by resorting

Sec. 10 C.P.C. which is not attracted. I do not find any good

ground to interfere with the order passed by the learned Judge.

This Writ Petition is accordingly dismissed.

V. RAMKUMAR,
(JUDGE)

W.P. (C) No. 2862 of 2010 -:3:-

ani.


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