IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 7037 of 2010(O)
1. MADHAVANM AGED 73, S/O.SANKU,
... Petitioner
Vs
1. VINJANA VARDHINI SABHA, CHERAI MURI,
... Respondent
2. THE SECRETARY, K.K.SIDHARTHAN,
3. V.C.VENU, TREASURER, AGED ABOUT 50,
For Petitioner :SRI.P.N.RAMAKRISHNAN NAIR
For Respondent :SRI.N.N.SUGUNAPALAN (SR)
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :14/12/2010
O R D E R
THOMAS P. JOSEPH, J.
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W.P.(C) No.7037 of 2010
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Dated this the 14th day of December, 2010.
JUDGMENT
This petition is in challenge of Ext.P11, order dated October 26, 2009 on
I.A.No.3810 of 2009 in O.S.No.192 of 2003 of the court of learned Additional Sub
Judge, North Paravur. Vide that application, petitioner/plaintiff wanted to stay
trial of O.S.No.192 of 2003 until disposal of R.F.A.No.14 of 2007 alleging that
issue involved in both the cases are one and the same and that unless the
subsequent suit is stayed, there is possibility of divergent finding. Application
was dismissed by learned Additional Sub Judge . Hence this petition.
2. Petitioner was one of the office bearers of respondent-Sabha.
While so, respondent filed O.S.No.126 of 2002 against petitioner and others in
the court of learned Principal Sub Judge, North Paravur for recovery of amount
alleging that the said amount was misappropriated by petitioner and others.
Petitioner filed Ext.P2, written statement denying the allegations and contending
that entire records of the respondent Sabha were with its present office bearers.
Learned Sub Judge granted a decree in favour of respondent vide Ext.P6,
judgment. Learned Sub Judge took the view that as office bearers the
documents should have been in the custody of petitioner and others, they did not
produce the said documents, and accepted case of respondent, it is contended
by learned counsel. That judgment and decree are under challenge in
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R.F.A.No.14 of 2007 at the instance of petitioner and others. In the meantime,
petitioner filed O.S.No.192 of 2003 in the court of learned Additional Sub Judge,
North Paravur for recovery of certain amount allegedly due to him from the
respondent based on certain advances made by petitioner for construction of
school building and for other purposes. Trial of that suit was sought to be stayed
until disposal of R.F.A.No.14 of 2007 which learned Sub Judge refused
observing that O.S.No.126 of 2002 concerned alleged misappropriation of funds
belonging to the respondent while O.S.No.192 of 2003 concerned recovery of
amount allegedly advanced by petitioner to the respondent and hence there is
no nexus between the two suits.
3. It is contended by learned counsel for petitioner that after disposal
of O.S.No.126 of 2002, police under Ext.P8, mahazar seized relevant
documents from certain persons connected with the present administration of
respondent . Petitioner obtained certified copy of the same and produced it in
R.F.A.No.14 of 2007. Apprehension of petitioner is that learned Sub Judge in
Ext.P6, judgment considered the question whether petitioner and other office
bearers had been maintaining proper accounts, decided the issue against
petitioner and others and that finding will have a bearing in the decision of
O.S.No.192 of 2003 since petitioner is relying on the very same documents to
substantiate his claim of advancement of certain amount to the respondent.
Learned counsel for respondent contends that claim in the suits are entirely
different and hence no question of res judicata would arise by the decision in
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O.S.No.126 of 2002. According to the learned counsel, there is no reason to
stay trial of O.S.No.192 of 2003. Learned counsel contends that in Ext.P2,
written statement what is contended by petitioner is not that he has handed over
the relevant documents to respondent but, handed over key of the room where
the records are kept.
4. I am not going into the question of source from which the records
were allegedly seized by police and its relevance in the two suits. These are
matters to be considered by the appropriate courts. But it is seen from Ext.P6,
judgment that learned Sub Judge has considered the question in O.S.No.126 of
2002 whether petitioner and other office bearers were maintaining the accounts
properly and it is not disputed before me that for whatever reason it be, none of
the documents were before learned Sub Judge while deciding O.S.No.126 of
2002. Certainly, it would appear that it was on a finding that petitioner and
others who ought to have produced the relevant documents did not do so that
the finding was arrived at. The finding regarding accuracy of entries in the
records may have a bearing on the claim of petitioner in O.S.No.192 of 2003
which are relied on by him to substantiate his claim. In that view of the matter it
is just and proper that trial of O.S.No.192 of 2003 awaited decision in
R.F.A.No.14 of 2007. I am persuaded to think that trial of O.S.No.192 of 2003
should await the decision in R.F.A.No.14 of 2007. This aspect of the matter has
not been considered by the learned Sub Judge while disposing of Ext.P9,
application.
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Resultantly this petition is allowed and Ext.P11, order is set aside.
I.A.No.3810 of 2009 is allowed and trial of O.S.No.192 of 2003 of the court of
learned Additional Sub Judge, North Paravur will stand stayed until disposal of
R.F.A.No.14 of 2007. It is made clear that I have not made any observation
regarding admissibility of any of the documents relied on by the parties which is
a matter learned Additional Sub Judge has to decide at the time of trial.
I.A.Nos.4599 of 2010 and 16486 of 2010 will stand dismissed.
THOMAS P.JOSEPH,
Judge.
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