IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 20TH OCTOBER 2010 / 28TH ASWINA 1932 OP(C).No. 379 of 2010(O) ------------------------ AGAINST THE ORDER DATED 08/09/2010 IN OS.762/1976 of PRINCIPAL MUNSIFF COURT, KOCHI .................... PETITIONERS ------------------------------- 1. BABU THOMAS, S/O. THOMAS, AGED 44 YEARS, RESIDENT OF CHITTEZHATH HOUSE, HOSPITAL JUNCTION, NARAKKAL VILLAGE, NARAKKAL.P.O., KOCHI TALUK. PIN-682505. 2. CICILY THOMAS, W/O. THOMAS, AGED 70 YEARS, CHITTEZHATH HOUSE, HOSPITAL JUNCTION, NARAKKAL VILLAGE, NARAKKAL P.O., KOCHI TALUK. PIN-682505. 3. RAJU THOMAS, S/O. LATE THOMAS, AGED 36 YEARS, CHITTEZHATH HOUSE, HOSPITAL JUNCTION, NARAKKAL VILLAGE, NARAKKAL.P.O., KOCHI TALUK. PIN 682505. BY ADV. SRI.T.A.NARAYANAN NAIR SRI.R. SHIVSHANKARA RAO RESPONDENT(S): --------------- 1. K.C. BABU, S/O. CHAKUNNI, AGED 47 YEARS, RESIDING IN KOLLANNOOR PALACE, KATHRIKADAVU.P.O., ELAMKULAM VILLAGE, KANAYANNUR TALUK-682020. 2. SHEELA PAOULOSE, D/O. LATE THOMAS, 42 YEARS, MANDAPALLIL HOUSE, NEAR MAMPILLY WORKSHOP, MANJANAKKADU ROAD, NARAKKAL PO. -682505. 3. RANI MATHEW, D/O. LATE THOMAS, AGED 40 YEARS, KONNULLI HOUSE, KOCHUPALLY ROAD, THOPPUMPADY PO., KOCHI-682005. 4. MINI BENNY D/O. LATE THOMAS, THUNDATHIL HOUSE, HOSPITAL JUNCTION, NARAKKAL PO. -682505. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 20/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.379 of 2010 -------------------------------------- Dated this the 20th day of October, 2010. JUDGMENT Petitioners are defendant Nos.1 to 3 in O.S.No.262 of 2008 of the court of learned Principal Munsiff, Kochi. Respondent No.1 filed that suit for a decree for prohibitory injunction to restrain petitioners and respondent Nos.2 to 4 from trespassing into the suit property, putting up new constructions, enlarging the existing plaint B schedule or interfering with the right of respondent No.1 to construct wall/fence around and within plaint A schedule property without causing obstruction to petitioners and respondent Nos.2 to 4. Petitioners contended that the suit is barred under Section 11 and Order II Rule 2 of the Code of Civil Procedure (for short, “the Code”) in view of an earlier litigation and decision between predecessors in interest of the parties in O.S.No.762 of 1976. Petitioners wanted maintainability of th suit to be decided as preliminary issue and as per Ext.P12, order learned Munsiff found that suit cannot be said to be barred for any of the reasons stated by petitioners. Learned counsel for petitioners contended that Ext.P12, order is erroneous and that the relevant aspects of the matter were not taken into account by the learned Munsiff. 2. Facts which are not in dispute are that respondent No.1 got sale deed No.3208 of 2006 executed in respect of 35.450 cents (plaint A schedule) as per decree in O.S.No.154 of 2004 obtained against one Anasthasia and OP(C) No.379/2010 2 others who claimed title and possession of the said property from their predecessor in interest, Mathai. According to the petitioners, their predecessor in interest, Thomas had kudikidappu right in the said property under the said Mathai. While so, after death of Mathai, Anasthasia and others filed O.S.No.762 of 1976 against Thomas, predecessor in interest of petitioners for recovery of possession, mandatory injunction and for prohibitory injunction to restrain the predecessor in interest of petitioners from transgressing into other portions of the property. Trial court granted a decree as prayed for. In appeal at the instance of the predecessor in interest of petitioners, judgment and decree for recovery of possession was declined but the decree for mandatory and prohibitory injunction was confirmed. Both sides preferred Second Appeals to this Court. But this Court confirmed decision of the appellate court. Thereafter predecessors in interest of respondent No.1 launched execution of the decree for prohibitory and mandatory injunction. That was objected by predecessor in interest of petitioners contending that execution petition is time barred since as per Article 135 of the Limitation Act a decree for mandatory injunction shall be executed within three years of the date of decree. That objection was upheld and the learned Munsiff held that decree to the extent it concerned mandatory injunction became unexecutable. It is in the meantime that respondent No.1 got sale deed No.3208 of 2006 executed through court as per decree in O.S.No.154 of 2004. He filed O.S.No.262 of 2008 (Ext.P10 is the copy of plaint) wherein reliefs prayed for are prohibitory injunction to restrain petitioners and OP(C) No.379/2010 3 respondent Nos.2 onwards and their agents, successors and others from trespassing into and putting up or making new constructions or enlarging the existing B schedule structures (ie. septic tank, latrine, bathroom, etc.) in the plaint A schedule and to restrain them from causing any obstruction to respondent No.1 in constructing wall/fence around and within plaint A schedule without causing obstruction to the petitioners and respondent Nos.2 to 4 enjoying their house (plaint B schedule in O.S.No.762 of 1976) and also from causing obstruction to the peaceful enjoyment of plaint A schedule. 3. Contention of the learned counsel is that the prayer for injunction made in O.S.No.262 of 2008 was very much there in O.S.No.762 of 1976 and a decree for injunction has already been granted and hence there is no question of successor in interest of plaintiffs in O.S.No.762 of 1976 again suing for injunction on the same cause of action which is barred under Order II Rule 2 of the Code. According to the learned counsel the other reliefs prayed for are also not allowable as there is bar of res judicata under Section 11 of the Code. 4. These contentions were rejected by the learned Munsiff as seen from Ext.P12, order. I must notice from the judgment of trial court in O.S.No.762 of 1976 that injunction prayed for was against enlarging plaint B schedule therein or putting up other constructions in plaint A schedule (a portion of which is 35.450 cents as described in plaint A schedule to O.S.No.262 of OP(C) No.379/2010 4 2008). It is seen from Ext.P10, (copy of plaint in O.S.No.262 of 2008) that it is not with respect to putting up of constructions in addition to what is now in existence (plaint B schedule) alone that respondent No.1 has claimed relief. He has also made allegation regarding the existence of a pathway left for the use of petitioners and others which is described as plaint C schedule which matter was not under consideration in O.S.No.762 of 1976. Nor was the question whether respondent No.1 is entitled to put up wall/fence around and within plaint A schedule (35.450 cents) claimed by respondent No.1 as per sale deed No.3208 of 2006 wherein house occupied by petitioners situated an issue in the former suit. Order II Rule 2 of the code only bars a second suit on the same cause of action where in the former suit the plaintiff could have included all reliefs but he omitted to do so. Apprehension which gives rise to a cause of action to sue for relief of injunction can be a recurring cause of action. There are also further reliefs prayed for in O.S.No.262 of 2008 based on a fresh cause of action as pleaded in the plaint. Whether respondent No.1 is entitled to prove that cause of action and is entitled to get relief are matters to be decided at the trial and not to be decided as a preliminary issue under Order XIV Rule 2 of the Code. Same is the question with respect to the plea of res judicata. Res judicata only ousts the jurisdiction of the court and did not affect right of party to institute the suit. Question whether decree in O.S.No.762 of 1976 operate as res judicata is a matter to be decided after parties adduced evidence. Viewed in that line I find no reason to interfere with Ext.P12, order. But I make it clear that OP(C) No.379/2010 5 whatever contentions petitioners have urged in their written statement as to the maintainability of the suit could be urged by them after trial, as provided under law if they are entitled to such a course. With the above observation this Writ Petition is dismissed. THOMAS P.JOSEPH, Judge. cks