IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 22ND FEBRUARY 2010 / 3RD PHALGUNA 1931 WP(C).No. 731 of 2010(O) ------------------------------------- OS.10/2009 of MUNSIFF COURT, KASARAGOD .................... PETITIONER(S): ----------------------- JAGADEESHA, AGED 40 YEARS, S/O.LATE VASUDEVA HEGDE, RESIDING AT SHANTHIPALLA IN KOIPADY VILLAGE, KASARAGOD TALUK, P.O.KUMBLA. BY ADV. MR.K.G.GOURI SANKAR RAI RESPONDENT(S): -------------------------- 1. SMT. BHAGIRATHI, D/O.RAMA HEGDE AND W/O.LATE VASUDEVA HEGDE, RESIDING AT KUNTANGERADKA IN KOIPADY VILLAGE, KASARAGOD TALUK, P.O.KUMBLA. 2. DAMODARA, S/O.LATE VASUDEVA HEGDE, RESIDING AT SHANTHIPALLA IN KOIPADY VILLAGE, KASARAGOD TALUK, P.O.KUMBLA. 3. SAROJINI, D/O.LATE VASUDEVA HEGDE, W/O.GOPALAKRISHNA HEGDE, RESIDING AT KUNTANGERADKA IN KOIPADY VILLAGE, KASARAGOD TALUK, P.O.KUMBLA. 4. SMT.HEMAVATHI, D/O.LATE VASUDEVA HEGDE, AND W/O.SURENDRA HEGDE, RESIDING AT PAYANGADI PARAMBA, PANIYANGARA KALLAI, KOZHIKODE. 5. MEENAKSHI, D/O.LATE VASUDEVA HEGDE, RESIDING AT NEERAMOOLA, KOTTOR, MULIYAR VILLAGE, KASARAGOD TALUK, P.O.MOVVAR. 6. RAMANI, D/O.LATE VASUDEVA HEGDE, RESIDING AT KUNTANGARADKA IN KOIPADY VILLAGE, KASARAGOD TALUK, P.O.KUMBLA. WP(C).No. 731 of 2010(O) 7. SURENDRA, S/O.LATE VASUDEVA HEGDE, RESIDING AT KUNTANGARADKA IN KOIPADY VILLAGE, KASARAGOD TALUK, P.O.KUMBLA. 8. VASANTHA KUMAR, S/O.LATE VASUDEVA HEGDE, RESIDING AT BHASKARANANAGARA, SHANTHIPALLA IN KOIPADY VILLAGE, KASARAGOD TALUK, P.O.KUMBLA. 9. JAYAPALA, S/O.RAJAMANI, RESIDING AT UNIVERSAL MILL, SHANTHIPALLA IN KOIPADY VILLAGE, KASARAGOD TALUK, P.O.KUMBLA. 10. U. SURENDRA HEGDE, S/O.VENKATRAMANA HEGDE, RESIDING AT PAYANGADI IN PANIYANKARA, P.O.KALA, CALICUT. BY THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 731 of 2010(O) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE I.A. NO.1979/2009 IN O.S.10/2009 OF PRL. MUNSIFF OF KASARAGOD. EXT.P1(a): COPY OF THE AFFIDAVIT ACCOMPANYING THE I.A. NO.1979/2009 IN O.S. NO.10/2009 OF PRL. MUNSIFF OF KASARAGOD. EXT.P2: COPY OF THE COUNTER. EXT.P3: COPY OF THE ORDER PASSED IN I.A.1979/09 IN O.S. NO.10/2009 ON THE FILE OF THE PRL. MUNSIFF, KASARAGOD. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.S. TO JUDGE rs. P.BHAVADASAN, J. ------------------------------------- WP(C) No.731 of 2010-O ------------------------------------- Dated 22nd February 2010 Judgment In this Petition filed under Article 227 of the Constitution of India, the petitioner challenges the order dated 20.11.2009 in IA No.1979/09 in OS No.10/09 before the Principal Munsiff's Court, Kasaragod. 2. The petitioner instituted OS No.10/09 which was a suit for partition of the plaint schedule property. The petitioner and respondents 1 to 8 herein are said to be the co-owners of the property. Subsequently, respondents 9 and 10 were also impleaded as they also claimed right over the said property. The 10th defendant contended that he purchased 2/9th share of the plaintiff and the 8th defendant. In the written statement, the 10th defendant pleaded that the 8th defendant had filed a suit as OS No.60/96 on the file of the Sub Court, Kasaragod for cancellation of a sale deed alleged to have been executed by the 7th defendant as Power of Attorney Holder of the 8th defendant in favour of WPC 731/10 2 the 10th defendant. That suit was dismissed and an appeal was pending as AS No.873/98. When OS No.10/09 was listed for trial, the 10th defendant fled IA No.1087/09 under S.10 CPC, pointing out that the issues involved in the earlier suit and the present suit are one and the same and therefore, the present suit may be stayed. The petitioner resisted the petition pointing out that there is no justification in doing so and the petitioner was not at all a party to that proceedings. It was also pointed out that the issues involved in the present suit are entirely different and therefore, stay was not warranted. The Court below allowed the petition and granted stay. The only fact which persuaded the Court to grant stay was that it was found that the property involved in the two suits are one and the same. 3. The above finding is not sustainable in law. The ingredients necessary to attract S.10 are not available in this case. The test is to see if the decision in one suit will operate as res judicata in the other. The issues in both the suits must be substantially same and the parties should WPC 731/10 3 also be same or at least claiming under them. These ingredients are not satisfied in the present case. The Court below, therefore, was not justified in granting stay of the trial of OS No.10/09 pending before the said Court. 4. In the result, this Petition is allowed. The impugned order is set aside and the Court below is directed to go on with the trial of the case. P.BHAVADASAN, JUDGE sta WPC 731/10 4