IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 7TH OCTOBER 2009 / 15TH ASWINA 1931 WP(C).No. 28058 of 2009(O) -------------------------- OS.674/2007 of ADDL.MUNSIFF COURT, ALAPPUZHA .................... PETITIONER(S): --------------- ANTONY,S/O.OUSEPH GEORGE GEEMANGALATHU PATHIL, ' MITHRAKAY PO, MUTTAR VILLAGE, KUTTANADU TALUK ALAPPUZHA. BY ADV. SRI.J.OM PRAKASH RESPONDENT(S): --------------- KUTTAN @ KUTTAPPAN ,S/O.KANKALI CHOORAKUTTY LAKSHAMVEEDU, MUTTAR PO KUTTANADU, ALAPPUZHA. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.28058 OF 2009 () ----------------------------------- Dated this the 7th day of October, 2009 J U D G M E N T The writ petition is filed seeking mainly the following relief: i. to issue a writ of certiorari calling for the records relating to Ext.P6 and quash the same. 2. Petitioner is the plaintiff in O.S.No.674 of 2007 on the file of the Additional Munsiff Court, Alappuzha. The above suit was one for perpetual prohibitory injunction. When the suit came up in the special list for trial, petitioner/plaintiff moved two applications, one for removal of the case from the list, and the other for stay of the trial of the suit under Section 10 of the Code of Civil Procedure, for the reason that an WPC.28058/09 2 appeal against the decision of another suit in which identical issues are involved, is still pending for consideration before the District Court Alappuzha. The learned Munsiff dismissed both the applications of the plaintiff. Ext.P6 is the order dismissing the application for removal of the case from the list and Ext.P7 is the copy of the order declining the requests for staying of the suit under Section 10 of the CPC. The challenge in the writ petition is confined to Ext.P7 order. 2. I heard the learned counsel for the petitioner. At the time of hearing, the learned counsel for the petitioner submitted that after passing of Exts.P6 and P7 orders, the suit happened to be dismissed for default, and an application moved under Order IX Rule 9 of the CPC for restoring of the suit is pending consideration. As the suit has been dismissed, I need not go into the propriety and correctness of Ext.P7 order challenged in the writ petition. If at all the suit is restored and producing documents substantiating his case for stay of the suit under Section 10 of the CPC, petitioner can seek for such relief. I make it clear that Ext.P7 order passed WPC.28058/09 3 by the court will not stand, in case the suit is restored, in allowing the petitioner to canvass his case for stay of the suit on account of the pendency of the appeal. I make it further clear that I am not expressing any opinion with respect to the orders to be passed on the restoration application, and, if suit restored on the application for its stay, if at all such a request is again made by the petitioner/plaintiff. Subject to the above observations, the writ petition is closed. S.S.SATHEESACHANDRAN JUDGE prp S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO. OF 2002 () ----------------------------------- Dated this the day of October, 2009 J U D G M E N T S.S.SATHEESACHANDRAN JUDGE prp