IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 2ND DECEMBER 2009 / 11TH AGRAHAYANA 1931 WP(C).No. 34547 of 2009(O) -------------------------- OS.246/2003 of MUNSIFF COURT, TIRUR .................... PETITIONER(S): --------------- SOUDATH,RESIDING AT OZHOORPARAMBIL, POOKAYIL BAZAR P.O., TIRUR, MALAPPURAM DISTRICT. BY ADV. SRI.T.C.SURESH MENON SRI.JIBU P THOMAS SRI.P.S.APPU SRI.A.R.NIMOD SRI.C.A.ANOOP RESPONDENT(S): --------------- 1.PUTHIYAKATH ALAVIKUTTY, 2.OZHOOR PARAMBIL UMMERKUTTY. 3.OZHOOR PARAMBIL SHAMEER. 4.CHENGANAKKATTIL SAIDUMUHAMMED. 5.CHOLAKKAL ISMAIL @ BAVA. 6.PULIKKALAKATH SALEEM 7.OZHOOR PARAMBIL BEERANKUTTY. POOKAYIL BAZAR P.O., TIRUR TALUK, MALAPPURAM DISTRICT. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.34547 OF 2009 () ----------------------------------- Dated this the 2nd day of December, 2009 J U D G M E N T The writ petition is filed seeking mainly the following reliefs: i. to call for the records leading to the passing of Ext.P4 order and set aside the same. ii. to allow I.A.NO.206/2007 in O.S.No.246/2003 and stay its trial pending R.S.A.No.632/2003. Petitioner is the 3rd defendant in O.S.No.246 of 2003 on the file of the Munsiff Court, Thriur. The above suit is for fixation of boundaries of the plaint property and also for injunction, and the 1st respondent is the plaintiff and the other respondents are co-defendants. Resisting the suit claim, the defendants have filed a written statement. Defendants have moved an application for stay of the trial of the suit under WPC.34547/09 2 Section 10 of the Code of Civil Procedure contending that a previous suit for injunction moved by the 1st respondent, in which, identical issues were involved had been dismissed after trial, which was confirmed in first appeal, but, now pending in second appeal. It is the case of the defendants that in view of the decision rendered in the previous suit, trial of the present suit cannot be proceeded with till a decision is rendered in the second appeal. The application moved by the defendants was opposed to by the 1st respondent filing objections. The learned Munsiff, after hearing both sides, declined the request of the defendants vide Ext.P4 order. Propriety and correctness of Ext.P4 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 learned counsel for the petitioner. Having regard to the submissions made and taking note of the facts and circumstances presented, I find no notice to the respondents is necessary, and hence, it is dispensed with. Inviting my attention to the issues raised in the previous suit WPC.34547/09 3 as evidenced by Ext.P1 judgment rendered in that case, the learned counsel submitted that the right claimed by the plaintiff over the disputed property, which is claimed as part of the plaint property, had been decided against in the previous suit and it operates as res judicata precluding the plaintiff from agitating that issue in the present suit. It is further submitted by the counsel that in the written statement, the defendants have raised a contention that the suit is barred by res judicata. When the materials placed before the court prima facie, disclose that there was an adjudication of the issues involved in the present suit earlier, as between the parties in a previous litigation, according to the counsel, the same principle debars the trial of the suit covered by Section 10 of the CPC. Reliance is placed on Sulochana Amma v. Narayanan Nair ((1994) 2 SCC 14) and Annaimuthu Thevar (Dead) by LRs. v. Alagammal and others ((2005) 6 SCC 202) to contend that in a suit for injunction, if disputed questions of title are adjudicated upon, the findings entered thereon will operate as res judicata in a subsequent suit based on title over the very same property. Examining the WPC.34547/09 4 submissions made by the learned counsel with reference to Ext.P4 order passed by the learned Munsiff, I find it is open to the petitioner to canvass the plea of res judicata, if at all it has been raised, before the court below and get a decision thereof as provided by law, but, at this stage, while examining the propriety and correctness of Ext.P4 order, it is inappropriate for this Court to sit in judgment whether the present suit is barred by res judicata, and if so, the trial is liable to be stayed as claimed by the petitioner under Section 10 of the CPC. The question of res judicata can be considered and decided upon only after scrutiny of the materials, and it is seen that the court below has not been invited to enter a finding on that question so far. So much so, the challenge canvassed built upon the plea of res judicata, which is stated to have been raised in the written statement of the defendants to seek for a stay of the trial of the suit under Section 10 of the CPC, at this stage of the case, cannot be entertained. In case, the petitioner invites the attention of the court to the plea of res judicata, if already raised in the written statement, needless to point out, the court below may consider that WPC.34547/09 5 question as a preliminary issue as under Order XIV Rule 2 (2) of the CPC, provided, it can be decided without taking evidence. Subject to the above observations the writ petition is closed. Handover a copy of the judgment to the counsel for the petitioner on usual terms and send a copy of the judgment to the court concerned forthwith. S.S.SATHEESACHANDRAN JUDGE prp