IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR MONDAY, THE 29TH JUNE 2009 / 8TH ASHADHA 1931 AS.No. 880 of 1997() -------------------- OS.44/1990 of SUB COURT, CHERTHALA .................... APPELLANT/PLAINTIFF:- -------------------------- BABY AJAYAKUMARI, W/O. ABU, RESIDING AT LAKSHMI SADANAM, CHANAMANGALAM MURI, THANEERMUKKOM SOUTH VILLAGE, CHERTHALA. BY ADV. MR. V.N.SWAMINATHAN RESPONDENT/DEFENDANT:- -------------------------------- PHILIP, S/O. JOSEPH, RESIDING AT KUNNAPPALLIL, CHERAMANGALAM MURI, THANNEERMUKKOM SOUTH VILLAGE. ADV. MR. JOHNSON P.JOHN THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 29/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. RAMKUMAR , J. ========================== A.S. No. 880 of 1997 ========================== Dated this the 29th day of June, 2009. JUDGMENT The plaintiff in O.S. No. 44 of 1990 on the file of the Subordinate Judge's Court, Cherthala is the appellant in this appeal. The said suit was one for specific performance of Ext.A1 agreement allegedly executed by the defendant, Philip. The appellant had also filed O.S. No. 558 of 1989 before the Munsiff's Court, Cherthala. The said suit was one for a prohibitory injunction against the very same defendant in O.S. No. 44 of 1990 referred to above. Since the subject matter of the two suits as well as the parties to the two suits were the same, O.S. No. 558 of 1989 was ordered to be jointly tried along with O.S. No. 44 of 1990 and accordingly O.S. No. 558 of 1989 was transferred to the Sub Court, Cherthala where it was re- numbered as O.S. No. 230 of 1991. In both the suits, common issues were framed with regard to the issues which arose substantially in both the suits. Findings were also recorded against the common plaintiff in the two suits. As per common judgment dated 22.03.1997, the learned Subordinate Judge dismissed both the suits. Admittedly, the appellant/plaintiff has not preferred any appeal against the judgment and decree passed in O.S. No. 230 of 1991. If so, the findings recorded in the common issues and the dismissal of O.S. No. 230 of 1991 will operate as res judicata against this appeal preferred against O.S. No. 44 of 1990, in the light of the decision of the Full Bench of this Court reported in Janardhanan Pillai v. Kochunarayani Amma (1976 KLT 279). The matter is also covered by the subsequent decisions of the Supreme Court in Premier Tires Limited v. The Kerala State Road Transport Corporation - AIR 1993 SC 1202 and Ram Prakash v. Charan Kaur AIR 1997 SC 3760. In this view of the matter, this Court cannot entertain this appeal which is barred by the principles of res judicata as observed above. This appeal is accordingly dismissed. No costs. Dated this the 29th day of June, 2009. V. RAMKUMAR, JUDGE. Rv V. RAMKUMAR, J ------------------------------------ A.S. No.880 of 1997 ---------------------------------------- 29th day of June, 2009. JUDGMENT