IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 35613 of 2008(M)
1. ST.GEORGE'S JACOBITE SYRIAN CHURCH,
... Petitioner
2. K.P.PAILY, S/O.PAILY, AGED 68,
3. V.M.KURIAKOSE, AGED 49, S/O.MANI,
Vs
1. OUSEPH CHERIYAN, S/O.OUSEPH, AGED 56,
... Respondent
2. BINU THOMAS,S/O.THOMAS, AGED 25,
3. DEACON GEE VARGHESE KOCHUPARAMBIL,
4. FR.ELIAS JOHN, S/O.FR.M.C.JOHN, VICAR
5. C.G.JACOB, S/O.GEEVARGHESE KATHANAR,
6. T.P.JOHN, KIZHAKKUMCHERIL, MANNATHUR.
7. SKARIA PAILY, KUNNUMMEL, MANNATHUR.
8. GEORGE PETER, KOCHUPARAMBIL, MANNATHUR.
9. GEORGE PETER, KOCHUPARAMBIL,MANNATHUR.
10. V.K.JOHN, VANAPPURATHU, MANNATHUR.
11. SIMON MOOMUGALIL, MANNATHUR.
12. SHIBU KURIAN, VADACKEL, DILAPPYRAM.PO.
13. JOSE K.PRASAD, KOCHUPARAMBIL,
14. BABU ABRAHAM, KANNAMTHORATHU, MANNATHUR.
15. BABU ABRAHAM, MADUTHIKUDIYIL,MANNATHUR.
16. BENNY PAILY, NEDUMTHADHIL, MANNATHUR.
17. K.C.THANKACHAN, MARATHANAKUNNEL,
18. PHILIP SKARIA, VAZHAKKULAYIL, MANNATHUR.
19. SABU A.I, ARITHADATHIL, MANNATHUR.
20. JOBY VARGHESE, PUTHENPURACKAL,
21. JOHNSON JOSEPH, CHERAKKALAKUDIYIL,
22. BINU KURIAKOSE, ARITHADATHIL, MANNATHUR.
23. SONIL V.J.VATTAPARAMBIL, MANNATHUR.
24. K.M.MATHAI, KUDAPPILLIL, MANNATHUR.
25. JINTO KURIAN, MALAKUDIYIL, MANNATHUR.
26. K.C.ALIAS, MARUTHANAKUNNEL, MANNATHUR.
27. BABU JOHN, S/O.ULAHANNAN, AGED 38,
For Petitioner :SRI.JIJO THOMAS
For Respondent : No Appearance
The Hon'ble MR. Justice K.P.BALACHANDRAN
Dated :03/12/2008
O R D E R
K.P.BALACHANDRAN, J.
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W. P. C. No.35613 of 2008
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Dated this the 3rd day of December, 2008
JUDGMENT
Heard the counsel for the petitioners.
2. This Writ Petition is filed assailing
Ext.P5 order passed by the court below
refusing to stay the suit O.S.41/03 on its
file under Section 10 of the C.P.C.
3. Petitioners who are defendants 1, 3, 4
and 5 in the suit filed I.A.3388/08 for
staying the suit under Section 10 of the C.P.C
till disposal of A.S.176/02 and it is that
I.A. that was dismissed vide Ext.P5 order
refusing to stay the suit as prayed for.
Counsel for the petitioners submits that the
petitioners are not parties in A.S.176/02. If
the petitioners are not parties to the said
suit the fact that the said appeal is pending
is not a matter of concern for the petitioners
W. P. C. No.35613 of 2008 -2-
and a disposal of that appeal will not be
having any bearing in the present suit,
O.S.41/03. Counsel further submits that the
suit O.S.11/97 from the judgment against which
is A.S.176/02 filed was a suit filed under
Section 90 of the C.P.C and under Order I Rule
8 and that the suit being in a representative
capacity the finding in that suit will have
bearing on the issues involved for decision in
O.S.41/03 as well. All the same, he submits
that it was for non-compliance of the
requisite formalities to be complied with in a
suit under Order I Rule 8 C.P.C that the said
suit O.S.11/97 was dismissed. If so, obviously
there is no meaning in saying that the said
suit was a representative suit. The court
below has observed in para 4 of Ext.P5 order
as follows:-
W. P. C. No.35613 of 2008 -3-
“The subject matter and relief sought for in this
suit is different from O.S.11/97. So the final decision in
the previous suit would not operate as res judicata in
the subsequent suit. Cause of action in both suits are
also different. So there is no possibility of two
divergent and contradictory verdicts by one and same
court in respect of the same relief. So I find no
compelling circumstances to stay this suit u/s 10 CPC
till disposal of A.S.176/02 pending before the Hon’ble
High Court.”
4. The dismissal of I.A.3388/08 vide
Ext.P5 order in the circumstances, cannot be
faulted and there is no merit in this Writ
Petition.
5. This Writ Petition is hence,
dismissed.
K.P.BALACHANDRAN,
JUDGE
kns/-