IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 31ST MAY 2010 / 10TH JYAISTHA 1932 WP(C).No. 7143 of 2010(O) ------------------------- IA NO.799/2010 IN OS 273/2007 OF ADDITIONAL MUNSIFF COURT-I, KOZHIKODE PETITIONER(S): --------------- 1. SAROJINI, AGED 59 YEARS, W/O.KUMARAN, CHAKKORATHKULAM, NADAKKAVU.P.O, KACHERI AMSOM, DESOM, KOZHIKODE DISTRICT. 2. SANTHA, W/O.PERAVAKUTTY, CORPORATION COLONY, NADAKKAVU, KOZHIKODE DISTRICT. BY ADV. SRI.V.G.ARUN SRI.T.R.HARIKUMAR RESPONDENT(S): --------------- M.UDAYAKUMAR, S/O.GOPALAN, VENNEER VAYALIL, KACHERI AMSOM, DESOM, KOZHIKODE DISTRICT. ADV. SRI.V.T.MADHAVANUNNI SRI.V.A.SATHEESH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.7143/2010 APPENDIX PETITIONERS' EXHIBITS: EXT.P1 COPY OF JUDGMENT IN OS 273/2007 DATED 31.7.2008 EXT.P2 COPY OF JUDGMENT IN OS 283 OF 2007 DATED 27.3.2009 EXT.P3 COPY OF JUDGMENT IN AS 112 OF 2008 DATED 30.11.2009 EXT.P4 COPY OF IA NO.799 OF 2010 DATED 1.2.2010 EXT.P5 COPY OF THE ORDER IN IA 799/2010 IN OS 273/2007 DATED 11.2.2010 //TRUE COPY// THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.7143 of 2010 -------------------------------------- Dated this the 31st day of May, 2010. JUDGMENT This petition is preferred by defendant Nos.1 and 2 in O.S.No.273 of 2007 of the court of learned Additional Munsiff-I, Kozhikode seeking stay of trial of that suit until A.S.No.99 of 2009 pending in the court of learned Additional Sub Judge-II, Kozhikode is disposed of. 2. Respondent filed O.S.No.273 of 2007 for a decree for prohibitory injunction to restrain petitioners and others from trespassing into the suit property. Respondent claimed absolute right, title and possession of the suit property as per a Will executed by one Narayanan. Petitioners, denying execution of the Will have filed O.S.No.283 of 2007 for partition and separate possession of their share in the suit property impleading respondent also. Both suits were separately tried and ended in dismissal. Both sides preferred appeals, A.S.No.112 of 2008 being from the dismissal of O.S.No.273 of 2007 and A.S.No.99 of 2009 being from the dismissal of O.S.No.283 of 2007. Though appeals were pending in the same court there also no attempt was made by the parties for a simultaneous disposal of the appeals. A.S.No.112 of 2008 alone was taken up, dismissal of O.S.No.273 of 2007 was set aside and that suit was remitted to the trial court for fresh disposal . But A.S. No.99 of 2009 is awaiting decision of the appellate court. Hence, the prayer to stay the trial of O.S.No.273 WP(C) No.7143/2010 2 of 2007 till A.S.No. 99 of 2009 is decided. Learned counsel for petitioner contends that if not Section 10, Section 151 of the Code of Civil Procedure (for short, “the Code”) should have been invoked by the learned Additional Munsiff to stay trial of O.S.No.273 of 2007. Learned counsel for respondent would contend that Section 10 of the Code has no application since O.S.No.273 of 2007 is the former suit and under Section 10 of the Code there could be no stay of the former suit. 3. One of the issues relevant for consideration in both the cases as it appears from the arguments raised before me is whether the Will in question is genuine or not. If the genuineness of the Will is upheld, respondent may be entitled to get a decree for prohibitory injunction in O.S.No.273 of 2007 and if the finding is otherwise, then there may be weight in the contention raised by petitioners that themselves and other co-owners are entitled to share in the suit property. In such a situation to prevent divergent decisions it is necessary that trial of O.S.No.273 of 2007 is stayed till A.S.No.99 of 2009 is disposed of. Assuming that Section 10 of the Code is not applicable it is not as if civil court is powerless to deal with such a situation. In such contingencies Section 151 of the Code will come in aid. Having regard to the facts and circumstances invoking Section 151 of the Code I am inclined to grant relief to the petitioners as prayed for. WP(C) No.7143/2010 3 Resultantly this Writ Petition is allowed. Trial of O.S.No.273 of 2007of the court of learned Additional Munsiff-I, Kozhikode is stayed until A.S.No99 of 2009 is disposed of by learned Sub Judge, Kozhikode. Parties may request the learned Sub Judge to expedite disposal of A.S.No.99 of 2009. THOMAS P.JOSEPH, Judge. cks