IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 10TH DECEMBER 2010 / 19TH AGRAHAYANA 1932 OP(C).No. 1088 of 2010(O) ------------------------- IA NO.143/2010 IN OS.670/2008 of MUNSIFF COURT, KODUNGALLUR .................... PETITIONER (S): -------------------- SARASWATHI AMMA, AGED 65 YEARS, D/O.MUNDANCHERIL NANIKUTTY AMMA, MUNDANCHERIYIL HOUSE, SREENARAYANAPURAM, PADINJARAVEMBALLUR DESOM, KODUNGALLUR TALUK. BY ADV. SRI.G.SREEKUMAR (CHELUR) SRI.K.RAVI (PARIYARATH) RESPONDENT(S): --------------- SASIDHARAN, S/O.PEEDIKAPARAMBIL ANDIKUNJU, SREENARAYANAPURAM, PADINJARAVEMBALLUR DESOM, KODUNGALLUR TALUK. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 10/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.1088 of 2010 -------------------------------------- Dated this the 10th day of December, 2010. JUDGMENT Defendant No.2 in O.S.No.670 of 2008 of the court of learned Munsiff, Kodungallur is the petitioner challenging Ext.P7, order refusing to stay trial of the suit under Section10 of the Code of Civil Procedure (for short, “the Code”). Petitioner claimed a right of access through the suit property and filed O.S.No.838 of 2005 which ended in a dismissal. The judgment and decree in that case is under challenge in A.S.No.85 of 2007 which is not so far disposed of. It is while so, respondent filed O.S.No.670 of 2008 seeking a decree for prohibitory injunction against petitioner and others trespassing into the western boundary of the property scheduled in that suit, causing obstruction, making alteration, cutting trees or doing any other act affecting the position and enjoyment claimed by the respondent in the property involved in O.S.No.670 of 2008. When the case was to be included in the list petitioner filed Ext.P6, application for stay of trial of the suit citing pendency of A.S.No.85 of 2007 which according to the petitioner concerned the very same suit and the contesting parties are also the same. Learned Munsiff has refused to grant stay as prayed for in Ext.P6. Learned counsel contends that if O.S.No.670 of 2008 is decided separately there is possibility of divergent findings. It is also contended that if OP(C) No.1088/2010 2 some time is granted for trial of O.S.No.670 of 2008, it is possible for petitioner to get A.S.No.85 of 2007 disposed of in the meantime, so that the claim regarding right of access will be finally decided in that appeal. 2. Having heard learned counsel for petitioner and going through the materials placed before me I do not find it necessary to interfere with the order refusing to grant stay under Section 10 of the Code. But I make it clear that it will be open to the petitioner to request learned Munsiff to adjourn trial of O.S.No.670 of 2008 for some time so that in the meantime A.S.No.85 of 2007 could be got disposed of. If otherwise, it will be open to the petitioner to request learned Munsiff in case O.S.No.670 2008 is to be disposed of to direct that right of way claimed by petitioner through the suit property shall be governed by the decision in A.S.No.85 of 2007. Petition is disposed of in the above lines. THOMAS P.JOSEPH, Judge. cks