IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 14TH DECEMBER 2010 / 23RD AGRAHAYANA 1932 WP(C).No. 7037 of 2010(O) ------------------------- IA NO.3810/2009 IN OS.192/2003 of ADDL.SUB COURT,NORTH PARAVUR .................... PETITIONER(S): --------------- MADHAVANM AGED 73, S/O.SANKU, THIKOOTTATHIL HOUSE, PATTANAM KARA, VADAKKEKARA VILLAGE. BY ADV. SRI.P.N.RAMAKRISHNAN NAIR SRI.P.VISWANATHAN RESPONDENT(S): --------------- VINJANA VARDHINI SABHA, CHERAI MURI, PALLIPURAM VILLAGE REP. BY ITS PRESIDENT 1) BHAGYANATHAN, AGED 61, S/O.KUTTAN, EDAKKAT,CHERAI MURI PALLIPURAM VILLAGE, 2) SECRETARY, K.K.SIDHARTHAN, AGED ABOUT 67, S/O.KUMARAN, KOMATH HOUSE,CHERAI MURI, PALLIPPURAM VILLAGE, 3) V.C.VENU, TREASURER, AGED ABOUT 50, S/O.CHANDRAN, VALIYATHRAYIL VEEDU, BANK EMPLOYEE, MANAPPILLY AYYAPILLY MURI, KUZHUPILLY VILLAGE. ADV. SRI.N.N.SUGUNAPALAN (SR) FOR R1 TO R3 SMT.NITA.N.S. FOR R1 TO R3 SRI.S.SUJIN FOR R1 TO R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.7037/2010 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE PHOTOCOPY OF THE PLAINT IN OS NO.126/2002 ON THE FILE OF SUB COURT, NORTH PARUR EXT.P2 TRUE PHOTOCOPY OF THE WRITTEN STATEMENT IN OS 126/2003 ON THE FILE OF SUB COURT, NORTH PARUR EXT.P3 TRUE PHOTOCOPY OF THE PLAINT IN OS NO.192/2003 ON THE FILE OF SUB COURT, NORTH PARUR EXT.P4 PHOTOCOPY OF THE CRIMINAL M.P. 1367/2006 ON THE FILE OF JUDICIAL FIRST CLASS MAGISTRATE COURT, NORTH PARUR EXT.P5 TRUE PHOTOCOPY OF THE WRITTEN STATEMENT IN OS 192/2003 ON THE FILE OF SUB COURT, NORTH PARUR EXT.P6 TRUE PHOTCOPY OF THE JUDGMENT IN WRITTEN STATEMENT IN OS NO.126/2002 ON THE FILE OF SUB COURT, NORTH PARUR EXT.P7 TRUE PHOTOCOPY OF THE APPEAL MEMORANDUM IN R.F.A.NO.14/2007 EXT.P8 TRUE PHOTOCOPY OF THE SEARCH REPORT EXT.P9 TRUE PHOTOCOPY OF THE IA NO.3810/2009 OF SUB COURT, NORTH PARUR EXT.P10 TRUE PHOTOCOPY OF THE MEMORANDUM OF WP(C) 29765/2009 EXT.P11 TRUE PHOTOCOPY OF THE ORDER IN IA NO.3810/2009 OF SUB COURT, NORTH PARUR EXT.P12 TRUE COPY OF THE JUDGMENT IN WP(C) NO.29765/2009 //TRUE COPY// THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.7037 of 2010 -------------------------------------- Dated this the 14th day of December, 2010. JUDGMENT This petition is in challenge of Ext.P11, order dated October 26, 2009 on I.A.No.3810 of 2009 in O.S.No.192 of 2003 of the court of learned Additional Sub Judge, North Paravur. Vide that application, petitioner/plaintiff wanted to stay trial of O.S.No.192 of 2003 until disposal of R.F.A.No.14 of 2007 alleging that issue involved in both the cases are one and the same and that unless the subsequent suit is stayed, there is possibility of divergent finding. Application was dismissed by learned Additional Sub Judge . Hence this petition. 2. Petitioner was one of the office bearers of respondent-Sabha. While so, respondent filed O.S.No.126 of 2002 against petitioner and others in the court of learned Principal Sub Judge, North Paravur for recovery of amount alleging that the said amount was misappropriated by petitioner and others. Petitioner filed Ext.P2, written statement denying the allegations and contending that entire records of the respondent Sabha were with its present office bearers. Learned Sub Judge granted a decree in favour of respondent vide Ext.P6, judgment. Learned Sub Judge took the view that as office bearers the documents should have been in the custody of petitioner and others, they did not produce the said documents, and accepted case of respondent, it is contended by learned counsel. That judgment and decree are under challenge in WP(C) No.7037/2010 2 R.F.A.No.14 of 2007 at the instance of petitioner and others. In the meantime, petitioner filed O.S.No.192 of 2003 in the court of learned Additional Sub Judge, North Paravur for recovery of certain amount allegedly due to him from the respondent based on certain advances made by petitioner for construction of school building and for other purposes. Trial of that suit was sought to be stayed until disposal of R.F.A.No.14 of 2007 which learned Sub Judge refused observing that O.S.No.126 of 2002 concerned alleged misappropriation of funds belonging to the respondent while O.S.No.192 of 2003 concerned recovery of amount allegedly advanced by petitioner to the respondent and hence there is no nexus between the two suits. 3. It is contended by learned counsel for petitioner that after disposal of O.S.No.126 of 2002, police under Ext.P8, mahazar seized relevant documents from certain persons connected with the present administration of respondent . Petitioner obtained certified copy of the same and produced it in R.F.A.No.14 of 2007. Apprehension of petitioner is that learned Sub Judge in Ext.P6, judgment considered the question whether petitioner and other office bearers had been maintaining proper accounts, decided the issue against petitioner and others and that finding will have a bearing in the decision of O.S.No.192 of 2003 since petitioner is relying on the very same documents to substantiate his claim of advancement of certain amount to the respondent. Learned counsel for respondent contends that claim in the suits are entirely different and hence no question of res judicata would arise by the decision in WP(C) No.7037/2010 3 O.S.No.126 of 2002. According to the learned counsel, there is no reason to stay trial of O.S.No.192 of 2003. Learned counsel contends that in Ext.P2, written statement what is contended by petitioner is not that he has handed over the relevant documents to respondent but, handed over key of the room where the records are kept. 4. I am not going into the question of source from which the records were allegedly seized by police and its relevance in the two suits. These are matters to be considered by the appropriate courts. But it is seen from Ext.P6, judgment that learned Sub Judge has considered the question in O.S.No.126 of 2002 whether petitioner and other office bearers were maintaining the accounts properly and it is not disputed before me that for whatever reason it be, none of the documents were before learned Sub Judge while deciding O.S.No.126 of 2002. Certainly, it would appear that it was on a finding that petitioner and others who ought to have produced the relevant documents did not do so that the finding was arrived at. The finding regarding accuracy of entries in the records may have a bearing on the claim of petitioner in O.S.No.192 of 2003 which are relied on by him to substantiate his claim. In that view of the matter it is just and proper that trial of O.S.No.192 of 2003 awaited decision in R.F.A.No.14 of 2007. I am persuaded to think that trial of O.S.No.192 of 2003 should await the decision in R.F.A.No.14 of 2007. This aspect of the matter has not been considered by the learned Sub Judge while disposing of Ext.P9, application. WP(C) No.7037/2010 4 Resultantly this petition is allowed and Ext.P11, order is set aside. I.A.No.3810 of 2009 is allowed and trial of O.S.No.192 of 2003 of the court of learned Additional Sub Judge, North Paravur will stand stayed until disposal of R.F.A.No.14 of 2007. It is made clear that I have not made any observation regarding admissibility of any of the documents relied on by the parties which is a matter learned Additional Sub Judge has to decide at the time of trial. I.A.Nos.4599 of 2010 and 16486 of 2010 will stand dismissed. THOMAS P.JOSEPH, Judge. cks