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
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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)
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ani.