IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN WEDNESDAY, THE 3RD DECEMBER 2008 / 12TH AGRAHAYANA 1930 WP(C).No.35613 of 2008 (M) ---------------------------------- AGAINST THE ORDER IN I.A.3388/2008 IN OS.41/2003 of I ADDL.DISTRICT COURT, ERNAKULAM .................... PETITIONERS: ---------------- 1. ST.GEORGE'S JACOBITE SYRIAN CHURCH, MANNATHUR, MANNATHUR.P.O, THIRUMARADY VILLAGE, REPRESENTED BY ITS TRUSTEE. 2. K.P.PAILY, S/O.PAILY, AGED 68, KUTTICHERAYIL HOUSE,MANNATHUR.P.O, THIRUMARADY, ERNAKULAM DISTRICT. 3. V.M.KURIAKOSE, AGED 49, S/O.MANI, VANNAPPURATH HOUSE, MANNATHUR P.O,PIN-686 723. BY ADV. SRI.JIJO THOMAS SRI.MALLENATHAN.M. RESPONDENTS: ------------------ 1. OUSEPH CHERIYAN, S/O.OUSEPH, AGED 56, CHOORACKAL HOUSE,MANNATHU PO, THIRUMARADY VILLAGE, PAMPAKUDA VIA, ERNAKULAM DISTRICT,PIN-686723. 2. BINU THOMAS,S/O.THOMAS, AGED 25, MEEKUZHICKAL HOUSE, MANNATHUR.P.O, THIRUMARADY VILLGE, PAMPAKUDA VIA, ERNAKULAM, PIN-686723. 3. DEACON GEE VARGHESE KOCHUPARAMBIL, S/O.K.M.ALIAS, AGED 32,KOCHUPARAMBIL HOUSE, MANNATHOOR.P.O, PAMPAKUDA VIA, ERNAKULAM DISTRICT. WP(C).No.35613 of 2008 (M) -2- 4. FR.ELIAS JOHN, S/O.FR.M.C.JOHN, VICAR ST.GEORGE ORTHODOX SYRIAN CHURCH, MANNATHUR, MANNATHUR PO,THIRUMARADI VILLAGE, RESIDING AT MANNATHIKULAM, ONAKKOOR VILLAGE, PAMPAKUDA(VIA), PIN-686 723. 5. C.G.JACOB, S/O.GEEVARGHESE KATHANAR, CHELATTU, MANNATHUR, THIRUMARADY. 6. T.P.JOHN, KIZHAKKUMCHERIL, MANNATHUR. 7. SKARIA PAILY, KUNNUMMEL, MANNATHUR. 8. MATHAI T.V., THOLANIKUNNEL, MANNATHUR. 9. GEORGE PETER, KOCHUPARAMBIL,MANNATHUR. 10. V.M.JOHN, VANAPPURATHU, MANNATHUR. 11. SIMON MOOMUGALIL, MANNATHUR. 12. SHIBU KURIAN, VADACKEL, DILAPPYRAM.PO. 13. JOSE K.PRASAD, KOCHUPARAMBIL, MANNATHUR. 14. BABU ABRAHAM, KANNAMTHORATHU, MANNATHUR. 15. BABU ABRAHAM, MADUTHIKUDIYIL,MANNATHUR. 16. BENNY PAILY, NEDUMTHADHIL, MANNATHUR. 17. K.C.THANKACHAN, MARATHANAKUNNEL, MANNATHUR. 18. PHILIP SKARIA, VAZHAKKULAYIL, MANNATHUR. 19. SABU A.I, ARITHADATHIL, MANNATHUR. 20. JOBY VARGHESE, PUTHEPURACKAL, MANNATHUR. 21. JOHNSON JOSEPH, CHERAKKALAKUDIYIL, MANNATHUR. 22. BINU KURIAKOSE, ARITHADATHIL, MANNATHUR. WP(C).No.35613 of 2008 (M) -3- 23. SONIL V.J.,VATTAPARAMBIL, MANNATHUR. 24. K.M.MATHAI, KUDAPPILLIL, MANNATHUR. 25. JINTO KURIAN, MALAKUDIYIL, MANNATHUR. 26. K.C.ALIAS, MARUTHANAKUNNEL, MANNATHUR. 27. BABU JOHN, S/O.ULAHANNAN, AGED 38, PUTHUMPURATHU, MANNATHUR.P.O, PIN-686723. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ W. P. C. No.35613 of 2008 ------------------------------------------------ Dated this the 3rd day of December, 2008 JUDGMENT Heard the counsel for the petitioners. 2. This Writ Petition is filed assailing Ext.P5 order passed by the court below refusing to stay the suit O.S.41/03 on its file under Section 10 of the C.P.C. 3. Petitioners who are defendants 1, 3, 4 and 5 in the suit filed I.A.3388/08 for staying the suit under Section 10 of the C.P.C till disposal of A.S.176/02 and it is that I.A. that was dismissed vide Ext.P5 order refusing to stay the suit as prayed for. Counsel for the petitioners submits that the petitioners are not parties in A.S.176/02. If the petitioners are not parties to the said suit the fact that the said appeal is pending is not a matter of concern for the petitioners W. P. C. No.35613 of 2008 -2- and a disposal of that appeal will not be having any bearing in the present suit, O.S.41/03. Counsel further submits that the suit O.S.11/97 from the judgment against which is A.S.176/02 filed was a suit filed under Section 90 of the C.P.C and under Order I Rule 8 and that the suit being in a representative capacity the finding in that suit will have bearing on the issues involved for decision in O.S.41/03 as well. All the same, he submits that it was for non-compliance of the requisite formalities to be complied with in a suit under Order I Rule 8 C.P.C that the said suit O.S.11/97 was dismissed. If so, obviously there is no meaning in saying that the said suit was a representative suit. The court below has observed in para 4 of Ext.P5 order as follows:- W. P. C. No.35613 of 2008 -3- “The subject matter and relief sought for in this suit is different from O.S.11/97. So the final decision in the previous suit would not operate as res judicata in the subsequent suit. Cause of action in both suits are also different. So there is no possibility of two divergent and contradictory verdicts by one and same court in respect of the same relief. So I find no compelling circumstances to stay this suit u/s 10 CPC till disposal of A.S.176/02 pending before the Hon'ble High Court.” 4. The dismissal of I.A.3388/08 vide Ext.P5 order in the circumstances, cannot be faulted and there is no merit in this Writ Petition. 5. This Writ Petition is hence, dismissed. K.P.BALACHANDRAN, JUDGE kns/-