IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 10TH SEPTEMBER 2009 / 19TH BHADRA 1931 WP(C).No. 9659 of 2009(O) ------------------------- AGAINST THE ORDER IN IA 610/2008 IN OS.111/2006 of MUNSIFF COURT,VARKALA .................... PETITIONER(S): ------------------------ SATHEESHKUMARAN,S/O.KRITHIAVASAN, KAYANIYIL VEEDU,KADAKKAVOOR DESOM AND VILLAGE, THIRUVANANTHAPURAM. BY ADVS. MR.M.R.RAJESH, SMT.A.K.PREETHA. RESPONDENT(S): --------------------------- 1. MANJULA,D/O.BHARATHI, "PRASANTHI",KADAKKAVOOR VILLAGE, THIRUVANANTHAPURAM DISTRICT. 2. SASIDHARAN,S/O.BALAKRISHNAN, "PRASANTHI",KADAKKAVOOR VILLAGE, THIRUVANANTHAPURAM DISTRICT. R1 & R2 BY ADV. MR.G.S.REGHUNATH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.9659/2009 O APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE PLAINT IN O.S.NO.111/2006 FILED BY THE PETITIONER BEFORE THE MUNSIFF COURT, VARKALA. P2: COPY OF THE WRITTEN STATEMENT IN O.S.NO.111/2006. P3: COPY OF THE JUDGMENT IN O.S.NO.233/1994 DTD. 27/03/2004 OF THE SUB COURT, ATTINGAL. P4: COPY OF THE APPEAL MEMORANDUM IN A.S.NO.17/2006 FILED BY THE PETITIONER BEFORE THE DISTRICT COURT, THIRUVANANTHAPURAM. P5: COPY OF THE PETITION FILED BY THE PETITIONER IN I.A.NO.610/2008 IN O.S.NO.111/2006 BEFORE THE MUNSIFF COURT, VARKALA. P6: COPY OF THE OBJECTION FILED BY THE 1ST RESPONDENT TO EXT.P5. P7: COPY OF THE ORDER DTD. 18/03/2008 OF THE MUNSIFF COURT, VARKALA IN I.A.NO.610/2008 IN O.S.NO.111/2006. P8: COPY OF THE JUDGMENT DTD. 20/10/2008 IN WPC.NO.30589/2008 OF THIS HON'BLE COURT. P9: COPY OF THE PLAINT IN O.S.106/2005 FILED BY THE PETITIONER BEFORE THE MUNSIFF COURT, VARKALA. P10: COPY OF THE ORDER DTD. 11/01/2008 IN I.A.NO.40/2007 IN O.S.106/2005. RESPONDENT'S EXHIBITS: R1(A): COPY OF THE JUDGMENT IN CMA NO.17/2006 DTD. 20/10/2006. R1(B): COPY OF THE ORDER ON I.A.772/2006 IN O.S.111/06 DTD.12/04/2006 OF THE MUNSIFF'S COURT, VARKALA. R1(C): COPY OF THE APPEAL MEMO IN A.S.210/2005 FILED BY THIS RESPONDENT. /TRUE COPY/ P.A.TO JUDGE Kss S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.9659 OF 2009 (O) ----------------------------------- 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 WPC.9659/09 2 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 WPC.9659/09 3 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, WPC.9659/09 4 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