IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 9659 of 2009(O)
1. SATHEESHKUMARAN,S/O.KRITHIAVASAN,
... Petitioner
Vs
1. MANJULA,D/O.BHARATHI,
... Respondent
2. SASIDHARAN,S/O.BALAKRISHNAN,
For Petitioner :SRI.M.R.RAJESH
For Respondent :SRI.G.S.REGHUNATH
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :10/09/2009
O R D E R
S.S.SATHEESACHANDRAN, J.
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W.P.(C).NO.9659 OF 2009 (O)
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Dated this the 10th day of September, 2009
J U D G M E N T
The writ petition is filed seeking mainly the following
relief:
i. to issue a writ in the nature of
certiorari or any other writ, direction
or order calling for the records leading
to Ext.P7 order and quashing the same
and further allow Ext.P5 petition.
2. Petitioner is the defendant in O.S.No.111 of 2006 on
the file of the Munsiff Court, Varkala. The above suit is one
for injunction, and the respondents are the plaintiffs. First
plaintiff is none other than the sister of the petitioner.
Previously, there was a suit between the parties as O.S.No.233
of 1994 filed by the petitioner, in which, a decree for putting
up of a boundary in respect of his property was sought for.
From the decree passed in that suit, the parties therein, the
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present petitioner and the 1st respondent, both have preferred
appeals also and those appeals are now pending before the
Sub Court, Attingal. It is the case of the petitioner that the
subject matter involved in the appeals arising from the suit
O.S.No.233 of 1994 and also the present suit filed by the
respondent are one and the same, and so, he had moved an
application under Section 10 of the Code of Civil Procedure
for staying the present suit. That application was dismissed
by the court below vide Ext.P7 order. Propriety and
correctness of that order is challenged in the writ petition
invoking the supervisory jurisdiction vested with this Court
under Article 227 of the Constitution of India.
3. I heard the counsel on both sides. The learned
counsel for the petitioner submits that in Ext.P7, none of the
grounds stated in his application contending as to why the
stay of the present suit is to be ordered under Section 10 of
the Code of Civil Procedure has been adverted to or
considered by the learned Munsiff. Identical and substantial
issues as involved in the present suit have been adjudicated in
the previous suit filed by him as O.S.No.233 of 1994 and the
challenge against the decree passed in the suit is pending in
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respective appeals preferred by him and respondents before
the Sub Court, Attingal. So much so, according to the counsel,
the trial of the present suit is liable to be stayed under Section
10 of the Code of Civil Procedure. The learned counsel for
the respondents submitted that twice the present suit was
decreed ex parte. Till the suit came up in the list for trial, at
the first instance, no application was moved for staying of the
suit under Section 10 of the Code of Civil Procedure, submits
the counsel. It is further submitted that previously another
writ petition was filed canvassing the very same relief now
urged in the present petition, and, at the time when the writ
petition came up for consideration, petitioner having remained
absent had been declared ex parte in the suit and stating that
ground, that writ petition was sought to be withdrawn. Ext.P8
is the copy of that judgment. Pursuant thereto, after getting
an order setting aside the ex parte decree, he had again
pressed into service the present application for staying of the
suit under Section 10 of the Code of Civil Procedure. The
learned counsel would further submit that the subject matter
involved in both the suits, the suit filed by the petitioner as
O.S.No.233 of 1994 and the present suit is entirely different
and the reliefs claimed are also different. In the previous suit,
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the subject matter was the property in which the petitioner
had obtained title and possession and the relief claimed was
only for putting up the boundaries on its southern and
northern side. Admittedly, the properties on the southern side
and the northern side of the petitioner’s property belong to
the respondents. The present suit filed by the respondents
relate to five cents of property situate on the northern side of
the petitioner’s property, which was not the subject matter in
the previous suit. The relief claimed in the present suit is one
for injunction simpliciter. By no stretch of imagination,
according to the counsel, it can be stated that the identical
issues are involved in both the suits.
4. Submissions made by the learned counsel for the
respondents, which remained uncontroverted, prima facie,
disclose that the issues covered by the present suit arising for
adjudication differ from the issues in the previous suit of the
petitioner, in the decision of which, appeals preferred by the
parties are pending for consideration. Petitioner has not made
out any ground for staying of the present suit under Section
10 of the Code of Civil Procedure. There is no impropriety or
illegality in the order passed by the court below declining his
WPC.9659/09 5
request to stay the trial of the suit.
Writ petition lacks merit, and it is dismissed.
S.S.SATHEESACHANDRAN
JUDGE
prp