IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 15TH JUNE 2009 / 25TH JYAISHTA 1931 WP(C).No. 16385 of 2009(O) -------------------------- OS.1699/2009 of II ADDL.M.C.,TRIVANDRUM .................... PETITIONER(S): -------------------------- 1. LALITHA BAI, WRONGLY SHOWN AS LALITHA BEEVI, D/O.AMBUJAKSHI AMMA, RESIDING AT KRISHNA KRIPA, V.K.K.NAGAR, PERUNTHANNI, THIRUVANANTHAPURAM. 2. DILEEP KUMAR, S/O.R.GOPINATHAN NAIR, RESIDING AT KRISHNA KRIPA, V.K.K.NAGAR, PERUNTHANNI, THIRUVANANTHAPURAM. 3. SREEKALA GOPINATH, D/O.LALITHA BAI, RESIDING AT KRISHNA KRIPA, V.K.K.NAGAR, PERUNTHANNI, THIRUVANANTHAPURAM. 4. PADMAKUMAR, S/O.R.GOPINATHAN NAIR, RESIDING AT KRISHNA KRIPA, V.K.K.NAGAR, PERUNTHANNI, THIRUVANANTHAPURAM. BY ADV. MR.G.S.RAGHUNATH RESPONDENT(S): --------------------------- 1. BINU VASANTH, D/O.T.SETHUNATH, SREE POONAMBALAM, MUTTATHARA, THIRUVANANTHAPURAM. Kss ..2/- ....2..... WPC.NO.16385/2009 O 2. BINDU VASANTH, D/O.T.SETHUNATH AT DO. DO., NOW RESIDING AT NO.10 KELVIN CLOSE BUGS., ENGLAND. 3. BAIJU VASANTH, S/O.T.SETHUNATH, SREE POONAMBALAM, MUTTATHARA, THIRUVANANTHAPURAM. (RESPONDENTS 1 TO 3 ARE REP.BY THEIR FATHER AND POWER OF ATTORNEY HOLDER SRI.T.SETHUNATH S/O.THANUVAN, SREE POONAMBALAM, MUTTATHARA, THIRUVANANTHAPURAM). 4. INDIRA BAI, D/O.AMBUJAKSHI AMMA, 'PRIYA PLOT NO.47, SANTHOSH NAGAR, KUDUDAPPANAKUNNU, THIRUVANANTHAPURAM. 5. RAJASREE, D/O.INDIRA BAI, AT DO. DO. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss S.S. SATHEESACHANDRAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.16385 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 15th June, 2009 JUDGMENT The Writ Petition is filed under Article 227 of the Constitution of India seeking the following reliefs: 1. All records relating to Ext.P5 be called to this Hon'ble Court and an order be passed setting aside Ext.P5 order. 2. An order be passed directing the Munsiff's Court, Thiruvananthapuram where O.S.1699/04 is pending to frame an issue on the basis of the contentions of the petitioners in para 4,5, 6 and 7 of the written statement. 3. An order be passed directing the lower court to consider Ext.P8 petition namely, I.A.3985/09 separately and before the trial of the suit and pass an order on the same. 4. All further proceedings in O.S.1699/09 on the file of the Munsiff's Court, Thiruvananthapuram be stayed pending disposal of this Writ Petition. 5. The petitioners be granted such further reliefs as are appropriate and incidental to this Writ Petition. 2. Petitioners are the defendants in O.S.No.1699/04 on the file of the Munsiff Court, Thiruvananthapuram. The respondents in the W.P.C.No.16385/09 - 2 - petition as plaintiffs instituted the above suit for declaration of their title, mandatory injunction and for putting up a boundary. After filing of the written statement by the petitioners/defendants, issues were settled for trial. The petitioners/defendants then moved an application for framing of an additional issue in the following terms: “Is not the allegation of the plaintiff that the property of defendant obtained as B schedule in the partition deed of 1074 barred by estoppel and estoppel by judgment.” The learned Munsiff, after hearing both sides, rejected that application holding that proper issues have already been settled in the suit and the additional issue sought for is not necessary. The issue whether the suit is barred by res judicata has already been settled along with other issues was taken into account by the learned Munsiff to hold that no additional issue as canvassed by the defendants is warranted. The defendants had also moved an application for setting aside the commission report and plan filed in the suit contending that in a previous writ petition filed by them before this court, there was a direction to the learned Munsiff to pass fresh orders on the commission application moved by the plaintiff and W.P.C.No.16385/09 - 3 - that was not complied with since before its consideration, the commissioner had executed the order and filed a report. In the present Writ Petition over and above challenging Ext.P5 order passed by the learned Munsiff disallowing the plea of the defendants for framing an additional issue as indicated, petitioners/defendants seek for issuing directions/orders to the court below to consider their Ext.P8 application moved for setting aside commission report and plan before including the case in the list. 3. I heard the learned counsel for the petitioners. Ext.P2 is the copy of the written statement filed by the petitioners/defendants in the suit. In a previous suit instituted by the plaintiff for a decree of permanent injunction in respect of the subject matter covered by the present suit which admittedly was permitted to be withdrawn with liberty to file fresh suit, some admissions had been made in the plaint contrary to the allegations raised in the plaint of the present suit and in the order on interlocutory applications and a judgment in a writ petition moved by the defendants as petitioners, some observations have been made which constitute estoppel by conduct as against plaintiffs in the suit and as such the additional issue canvassed by the defendants is essential for a fair adjudication of all the disputes W.P.C.No.16385/09 - 4 - involved in the suit is the submission of the learned counsel. If at all, there is any admission by the plaintiffs in the previous suit which was allowed to be withdrawn, the value of that admission is a matter to be considered in the trial of the present suit. By no stretch of imagination, it can be considered that such admissions will constitute estoppel by conduct. Needless to point out that to sustain a plea of estoppel as against the plaintiffs, the defendants must show that they have acted upon it to their prejudice and, further, they were not aware of the real state of things or had means to knowledge of such things. Even if the plaintiffs had made admissions in the previous suit, unless the defendants have a case that they have acted upon it to their prejudice, they cannot canvass that the allegation in the present suit which is different from the previous suit will amount to an estoppel. I do not want to express any opinion on the merits of the contentions raised by the defendants in paragraphs 5, 6 and 7 of their written statement which had been highlighted by the counsel as the basis for raising the additional issue. Having regard to the submissions made by the counsel and the facts and circumstances presented with reference to the materials produced, I find no impropriety or illegality in the order passed by the learned Munsiff W.P.C.No.16385/09 - 5 - declining the framing of an additional issue in the suit. With respect to Ext.P8 application moved by the defendants on the basis of the directions in Ext.P7 judgment, it is noticed is that the above application is dated 2.6.2009, ten days before filing of the present writ petition. Most probably, the learned Munsiff has not been asked to consider the application so far, and before doing so, it may be improper for this court to give any direction with respect to that application. The Writ Petition is devoid of any merit, and it is dismissed. srd S.S. SATHEESACHANDRAN, JUDGE