IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 11TH JUNE 2010 / 21ST JYAISTHA 1932 WP(C).No. 15366 of 2010(O) -------------------------- OS.783/2007 of SUB COURT,ERNAKULAM .................... PETITIONER: --------------- AR.JABEEN L.ZACHARIAS,W/O.LALICHAN ZACHARIAS,,AGED 49 YEARS, ARCHITECT,RESIDING AT KAKKAMTHOTTIL HOUSE,JAYA NAGAR, MARADU VILLAGE, PIN 682304, KANAYANNUR TALUK. BY ADV. SRI.M.M.ALIAS RESPONDENTS: --------------- 1. ALPHA PLAZA OWNERS ASSOCIATIION, REP. BY ITS SECRETARY, ALPHA PLAZA, K.P.VALLON ROAD, KADAVANTHARA DESOM, ELAMKULAM VILLAGE, KANAYANNUR TALUK. 2. PRESIDENT, ALPHA PLAZA OWNERS ASSOCIATION,K.P.VALLON ROAD, KADAVANTHARA DESOM, ELAMKULAM VILLAGE, KANAYANNUR TALUK. ADV. SRI.JOY THATTIL ITTOOP FOR R1 & R2 SRI.LIJOY P.VARGHESE FOR R1 & R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1 : AWARD PASSED BY HON'BLE LOK ADALATH EXHIBIT P2 : STATEMENT FILED BY THE PETITIONER BEFORE THE SUB COURT, ERNAKULAM EXHIBIT P3 : PETITION FILED IN O.S.No.715/2002 EXHIBIT P4 : STAY PETITION EXHIBIT P5 : ORDER IN I.A.No.2293/2010 DTD.12-03-2010 RESPONDENTS' EXHIBITS: NIL THOMAS P JOSEPH, J. ---------------------------------------- W.P.C.No.15366 of 2010 --------------------------------------- Dated this 11th day of June, 2010 JUDGMENT Plaintiff in O.S.No.783 of 2007 of the court of learned Sub Judge, Ernakulam is the petitioner before me challenging Ext.P5, order dated 12-03-2010 on I.A.No.2293 of 2010. Petitioner sought stay of trial of that suit pending disposal of I.A.No.2291 of 2010 in O.S.No.715 of 2002, another suit filed by petitioner. 2. According to the petitioner there was an agreement for sale between herself and the promoter of a commercial building for sale of office space. Since the promoter did not comply with his part of the contract petitioner filed O.S.No.715 of 2002 for specific performance of that agreement. That suit was settled in the Adalath which passed Ext.P1, award based on Ext.P2, statement. Since the promoter has not executed sale deed even in spite of Ext.P1, petitioner has filed I.A.No.2291 of 2010 in O.S.No.715 of 2002 to get the sale deed executed. In the meantime alleging that the Association of Building Owners is not permitting petitioner to occupy the said space which is in her possession she filed O.S.No.783 of 2007 for a decree for prohibitory injunction. According to the petitioner portion which she claimed to be in her W.P.C.No.15366 of 2010 : 2 : possession pursuant to the agreement for sale with the promoter and which has led to Ext.P1, award is also included in the plaint in O.S.No.783 of 2007. Petitioner filed I.A.No.2293 of 2010 in O.S.No.783 of 2010 for stay of trial of that suit pending disposal of I.A.No.2291 of 2010 in O.S.No.715 of 2002. Learned counsel contends that in both proceedings same issue as to the possession of petitioner arises and that if O.S.No.783 of 2007 is disposed of before I.A.No.2291 of 2010 in O.S.No.715 of 2002 is disposed of petitioner will be put to irreparable loss and injury. Learned counsel for respondents/defendants in O.S.No.783 of 2010 contend that the promoter who is said to have executed the agreement for sale is not a party in O.S.No.783 of 2007 and that the said suit was once dismissed for default but restored to file. It is also contended by learned counsel that recording of evidence in O.S.No.783 of 2007 has already started and it is at that stage that petitioner has chosen to file I.A.No.2291 of 2010. 3. Learned Sub Judge has observed in the impugned order that there is no necessity to stay O.S.No.783 of 2007. Defendant in O.S.No.715 of 2002 is not a party in O.S.No.783 of 2007. Respondents are also not parties in O.S.No.715 of 2002. It is not disputed that recording of evidence in O.S.No.783 of 2007 has started and the application of stay has been filed only thereafter. Exts.P1 and P2 involved in O.S.No.715 of 2002 do not say that W.P.C.No.15366 of 2010 : 3 : petitioner is in exclusive possession of the disputed area. Issue involved in both the suits is not the same. I do not find reason to interfere with the discretion exercised by the learned Sub Judge or the impugned order. Writ petition is therefore dismissed. (THOMAS P JOSEPH, JUDGE) Sbna/-