IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 16TH FEBRUARY 2010 / 27TH MAGHA 1931 WP(C).No. 32493 of 2008(R) -------------------------- {IN IA 4622/2007 IN OS.287/1999 OF THE PRL.SUB COURT, THRISSUR} .................... PETITIONER(S): --------------- DR.BABU, AGED 60 YEARS, S/O.KELLANNUR CHERU, RESIDING AT MOOLEPPATTU GARDENS, KUNNAMKULAM VILLAGE DESOM, THALAPPILLY TALUK. BY ADV. SRI.RAJIT SRI.RANJIT BABU RESPONDENT(S): --------------- ABRAHAM, AGED ABOUT 39 YEARS, BUSINESS, THEKKEKKARA, KUNNAMKULAM VILLAGE DESOM, THALAPPILLY TALUK. ADV. SRI.N.P.SAMUEL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 32493 of 2008 :: 2 :: APPENDIX PETITIONERS' EXHIBITS: EXT.P1: TRUE COPY OF THE PLAINT FILED BY THE RESPONDENT HEREIN IN OS NO.287/99. EXT.P2: TRUE COPY OF THE JUDGMNET OF THE MUNSIFF'S COURT, CHAVAKKAD IN O.S.NO.666/1996. EXT.P3: TRUE COPY OF THE JUDGMNET OF THE DISTRICT COURT IN A.S.114/1999. EXT.P4: TRUE COPY OF THE ORDER DATED 31.7.2003 IN O.S.NO.287/1999 OF THE PRINCIPAL SUB COURT. EXT.P5: TRUE COPY OF THE APPLICATION I.A.NO.4622/2007 IN O.S.NO.287/1999 FILED BY THE PETITIONER BEFORE THE SUB COURT, THRISSUR. EXT.P6: TRUE COPY OF THE ORDER DATED 26.7.2008 IN I.A.NO.4622/2007 IN O.S.NO.287/1999 OF THE SUB COURT, THRISSUR. RESPONDENT'S EXHIBITS: NIL //true copy// P.S. To Judge SK/- S.S.SATHEESACHANDRAN, J. ------------------------------------------------ W.P.(C) No.32493 of 2008 ----------------------------------------------- Dated this the 16th day of February, 2010 JUDGMENT Petitioner is the defendant in O.S.No.287/99 on the file of the Principal Sub Court, Thrissur. Respondent is the plaintiff. The above suit is one for a declaration that the plaintiff has right to enjoy 'C' schedule and 'D' schedule and for consequential reliefs. Previously, the respondent had filed another suit as O.S.No.666/96 before the Munsiff's Court, Chavakkad, in which, it is stated, a decree of perpetual injunction was applied in respect of 'C' schedule in the latter suit, to restrain the defendant/present petitioner from causing any obstruction to his enjoyment of that pathway. O.S.No.666/96 after trial was dismissed by Ext.P2 judgment. The respondent preferred an appeal as A.S.No.114/99 challenging the dismissal of the suit and the appellate court reversing the W.P.(C) No.32493 of 2008 :: 2 :: dismissal, granted a decree allowing in part the relief claimed in the suit. In view of the pendency of the appeal arising from the decree of dismissal of O.S.No.666/96, the subsequent suit O.S.No.287/99 was stayed by the Sub Court, invoking Section 10 of the Code of Civil Procedure. Stay of trial of that suit was ordered by the court suo motu, after the trial proceeded, and one of the witnesses of the plaintiff was examined. After disposal of A.S.No.114/999 granting a decree to the plaintiff, stay in O.S.No.287/99 was vacated and it was included in the special list for trial. Petitioner herein has preferred a second appeal against the decree and judgment passed by the appellate court in A.S.No.114/99. It is submitted that the second appeal R.S.A.No.588/05 after being admitted was taken on file is pending consideration. 2. Petitioner moved Ext.P5 application in O.S.No.287/99 for stay of the trial of that W.P.(C) No.32493 of 2008 :: 3 :: suit canvassing the pendency of R.S.A.No.588/05 in which, according to him, identical issues are involved for consideration. The learned Sub Judge dismissed Ext.P5 application by Ext.P6 order. Propriety and correctness of Ext.P6 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 counsel on both sides. 4. Pendency of R.S.A.No.588/05 before this court is canvassed by the counsel for the petitioner to contend that the trial of the second suit O.S.No.287/99 if proceeded to continue is likely to cause prejudice and hardship to the petitioner and also, perhaps, result in a conflicting decision. The court below, without examining the merit of Ext.P5 application dismissed it vide a single line order is the grievance canvassed by the W.P.(C) No.32493 of 2008 :: 4 :: counsel to contend that reconsideration of the request in Ext.P5 application has to be ordered to advance the ends of justice. 5. From the submissions made and taking note of the facts and circumstances it is seen that the previous suit was one for injunction and latter for declaration and consequential reliefs. Whatever be the identity of the property involved in both the suits, pendency of the second appeal in the given facts of the case cannot be pressed into service to stay the trial of the subsequent suit under Section 10 of the Code of Civil Procedure. The question whether the trial of any issue in the suit is covered by the adjudication in the earlier suit, and if so it is barred by res judicata has to be considered in the trial of the subsequent suit and not before. So much so, I do not find any impropriety or illegality in Ext.P6 order passed by the learned Sub Judge, declining the request of W.P.(C) No.32493 of 2008 :: 5 :: the petitioner to stay the trial of the suit under Section 10 of the Code of Civil Procedure. Writ petition is dismissed. Sd/- (S.S.SATHEESACHANDRAN) JUDGE SK/- //true copy//