IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 31120 of 2009(O)
1. THANDALAN AHAMMADKUTTY,
... Petitioner
Vs
1. THANDALAN PATHUMMU,
... Respondent
2. AREEKADAN ABDURAHIMAN,
3. AREEKADAN MOHAMMADALI,
4. AREEKADAN SHAREEFA, D/O.ALAVI,
5. AREEKADAN RASHEED,
6. AREEKADAN AMINA, W/O.ALAVI, DO. DO.
7. THANDALAN ALAVI,
For Petitioner :SRI.K.P.SUDHEER
For Respondent : No Appearance
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :03/11/2009
O R D E R
S.S.SATHEESACHANDRAN, J.
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W.P.(C).No.31120 OF 2009
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Dated this the 3rd day of November 2009
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JUDGMENT
The writ petition is filed seeking the
following reliefs.
i) Call for the records relating to I.A
No.197/2008 in O.S No.153/2005 on the file of the
Munsiff Court, Parappanangadi and quash Ext.P6
order dated 30/09/2009 (docket order) by issuing a
writ of certiorari or other appropriate writ, order
or direction.
ii) Issue such other writ, order or
direction as this Hon’ble Court may deem fit and
proper in the facts and circumstances of the case.
2. Petitioner is the second defendant in
O.S No.153 of 2005 on the file of the Munsiff
Court, Parappanangadi. Suit is one for partition.
W.P.(C).No.31120 OF 2009 Page numbers
Previously the trial of the suit had been stayed
under Section 10 of the Code of Civil Procedure in
view of the pendency of an appeal before the
Appellate Authority filed by the petitioner/first
defendant challenging the issue of a purchase
certificate in favour of additional defendants 7 to
11 in the suit. Now that stay has been vacated by
the learned Munsiff by order dated 30/09/2009
holding that in the given facts of the case Section
10 of the Code of Civil Procedure has no
applicability. Propriety and correctness of that
order passed by the learned Munsiff vacating the
order of stay of the trial of the suit which
continued in force is challenged in the writ
petition invoking the visitorial jurisdiction
vested with this court.
3. I heard the learned counsel for the
petitioner. Having regard to the submissions made
and taking note of the facts and circumstances
presented, I find no notice to the respondents is
W.P.(C).No.31120 OF 2009 Page numbers
necessary and hence it is dispensed with. Question
posed for consideration is whether pendency of an
appeal before the Appellate Authority in relation
to challenges raised against the issue of a
purchase certificate in favour of one or other of
the parties in the suit is a sufficient ground for
stay of the trial of a suit under Section 10 of the
Code of Civil Procedure. Needless to point out
that such a matter cannot be considered as directly
and substantially in issue as contemplated by
Section 10 of the Code of Civil Procedure which
mandate that the issue must be one in a previous
suit instituted between the parties. Even if there
is some connection as between the disputes pending
before different forums it cannot be considered as
directly and substantially in issue in a previous
suit An Appellate Authority cannot be considered as
a court in which a previous suit had been issued
between the parties. I do not find any impropriety
or illegality in the order passed by the learned
Munsiff vacating the order passed earlier under
W.P.(C).No.31120 OF 2009 Page numbers
Section 10 of the Code of Civil Procedure
interdicting the trial of the present suit. Writ
petition lacks merit, and it is dismissed.
Sd/-
S.S.SATHEESACHANDRAN,
JUDGE
//TRUE COPY//
P.A TO JUDGE
vdv