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