IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 7143 of 2010(O)
1. SAROJINI, AGED 59 YEARS,
... Petitioner
2. SANTHA, W/O.PERAVAKUTTY,
Vs
1. M.UDAYAKUMAR, S/O.GOPALAN,
... Respondent
For Petitioner :SRI.V.G.ARUN
For Respondent :SRI.V.T.MADHAVANUNNI
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :31/05/2010
O R D E R
THOMAS P. JOSEPH, J.
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W.P.(C) No.7143 of 2010
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Dated this the 31st day of May, 2010.
JUDGMENT
This petition is preferred by defendant Nos.1 and 2 in O.S.No.273 of 2007
of the court of learned Additional Munsiff-I, Kozhikode seeking stay of trial of that
suit until A.S.No.99 of 2009 pending in the court of learned Additional Sub
Judge-II, Kozhikode is disposed of.
2. Respondent filed O.S.No.273 of 2007 for a decree for prohibitory
injunction to restrain petitioners and others from trespassing into the suit
property. Respondent claimed absolute right, title and possession of the suit
property as per a Will executed by one Narayanan. Petitioners, denying
execution of the Will have filed O.S.No.283 of 2007 for partition and separate
possession of their share in the suit property impleading respondent also. Both
suits were separately tried and ended in dismissal. Both sides preferred
appeals, A.S.No.112 of 2008 being from the dismissal of O.S.No.273 of 2007
and A.S.No.99 of 2009 being from the dismissal of O.S.No.283 of 2007. Though
appeals were pending in the same court there also no attempt was made by the
parties for a simultaneous disposal of the appeals. A.S.No.112 of 2008 alone
was taken up, dismissal of O.S.No.273 of 2007 was set aside and that suit was
remitted to the trial court for fresh disposal . But A.S. No.99 of 2009 is awaiting
decision of the appellate court. Hence, the prayer to stay the trial of O.S.No.273
WP(C) No.7143/2010
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of 2007 till A.S.No. 99 of 2009 is decided. Learned counsel for petitioner
contends that if not Section 10, Section 151 of the Code of Civil Procedure (for
short, “the Code”) should have been invoked by the learned Additional Munsiff to
stay trial of O.S.No.273 of 2007. Learned counsel for respondent would
contend that Section 10 of the Code has no application since O.S.No.273 of
2007 is the former suit and under Section 10 of the Code there could be no stay
of the former suit.
3. One of the issues relevant for consideration in both the cases as it
appears from the arguments raised before me is whether the Will in question is
genuine or not. If the genuineness of the Will is upheld, respondent may be
entitled to get a decree for prohibitory injunction in O.S.No.273 of 2007 and if
the finding is otherwise, then there may be weight in the contention raised by
petitioners that themselves and other co-owners are entitled to share in the suit
property. In such a situation to prevent divergent decisions it is necessary that
trial of O.S.No.273 of 2007 is stayed till A.S.No.99 of 2009 is disposed of.
Assuming that Section 10 of the Code is not applicable it is not as if civil court is
powerless to deal with such a situation. In such contingencies Section 151 of
the Code will come in aid. Having regard to the facts and circumstances
invoking Section 151 of the Code I am inclined to grant relief to the petitioners
as prayed for.
WP(C) No.7143/2010
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Resultantly this Writ Petition is allowed. Trial of O.S.No.273 of 2007of the
court of learned Additional Munsiff-I, Kozhikode is stayed until A.S.No99 of 2009
is disposed of by learned Sub Judge, Kozhikode. Parties may request the
learned Sub Judge to expedite disposal of A.S.No.99 of 2009.
THOMAS P.JOSEPH,
Judge.
cks