IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 10TH MARCH 2010 / 19TH PHALGUNA 1931 WP(C).No. 747 of 2010(O) ----------------------------------- OS.206/2003 of PRL.MUNSIFF COURT, KASARAGOD .................... PETITIONER(S): ------------------------ FATHIMABI, W/O.LATE ABDUL MAZEED, MAJALU, MULINJA VILLAGE, P.O.UPPALA, KASARAGOD DISTRICT. BY ADVS. MR.K.V.SOHAN SMT.SREEJA SOHAN.K. RESPONDENT(S): ------------------------ 1. AFROZ BABU, W/O.LATE SAYYID YOUSUF, RESIDING AT SAYYED MANSION, KURICHIPALLA, P.O.UPPALA, KASARAGOD DISTRICT. 2. AZIMULLA, S/O.LATE SAYYID YOUSUF, RESIDING AT DO. 3. S.AHAMMED, S/O.MECHANIC USUF, SAPHIRE THEATRE BUILDING, UPPALA JUNCTION, P.O.UPPALA, KASARAGOD DISTRICT. R1 BY ADV. MR.MILLU DANDAPANI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/03/2010, THE COURT ON 10/03/2010 DELIVERED THE FOLLOWING: W.P.(C) NO.747/2010 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE PLAINT IN OS.206/03 FILED BY THE RESPONDENTS 1 AND 2 BEFORE THE MUNSIFF COURT, KASARAGOD DTD. 16.6.03. P2:- COPY OF THE JUDGMENT IN CRP. 141/07 DTD. 16.2..09. P3:- COPY OF THE ORDER IN RP. 264/09 DTD. 16.3.09. P4:- COPY OF THE ORDER OF THE SUPREME COURT IN SPECIAL LEAVE TO APPEAL 23503 – 23504/09 DTD. 1.10.09. P5:- COPY OF THE AFFIDAVIT ALONG WITH THE APPLICATION FILED AS IA. 1743/09 TO REMOVE OS. 206/03 FROM THE SPECIAL LIST, DTD. 8.10.09. P6:- COPY OF THE AFFIDVIT ALONG WITH THE APPLICATION FILED AS IA. 1795/09 TO STAY ALL FURTHER PROCEEDINGS UNTIL SLP PENDING BEFORE THE SUPREME COURT, DTD. 13.10.09. P7:- COPY OF THE ORDER IN IA. 1743/09 DTD. 26.10.09. P8:- COPY OF THE ORDER IN IA. 1795/09 DTD. 26.10.09. P9:- COPY OF THE ORDER IN IA. 2255/09 IN OS. 206/03 ON THE FILE OF THE PRINCIPAL MUNSIFF OF KASARAGOD DTD. 18.1.2010. P10:- COPY OF THE APPEAL MEMORANDUM IN CMA. 6/2010 DISTRICT COURT, KASARAGOD FILED DT. 5.2.2010. RESPONDENT'S EXHIBITS R1(a):- COPY OF THE JUDGMENT DTD. 19.11.09 IN OS. 206/03 ON THE FILE OF THE MUNSIFF COURT, KASARAGOD. TRUE COPY P.S. TO JUDGE tss P.BHAVADASAN, J. ------------------------------------- WP(C) No.747 of 2010-O ------------------------------------- Dated 10th March 2010 Judgment In this Writ Petition, filed under Article 227 of the Constitution of India, the petitioner, who is the second defendant in OS No.206/03 before the Principal Munsiff's Court, Kasaragod, assails the order in IA No.1795/09 dated 26.10.2009. 2. OS No.206/03 is a suit for recovery of possession, which is filed by the respondents against the defendants, one of whom is the petitioner herein. The plaint schedule property is a shop room, bearing Door No.M.P.III/540. The third respondent herein was the first defendant in the suit, who was shown as the tenant. 3. The case of the plaintiff in the suit was that the plaint schedule property was a part of the property involved in OS No.326/98 and as per the decree, they had taken possession of the same. Subsequently, it is alleged WPC 747/10 2 that the petitioner herein, through his son, let out the building to the first defendant. A copy of the plaint in OS No.206/03 is produced as Ext.P1. 4. It is alleged by the plaintiffs in the suit that the first plaintiff and Sri.Sayyid Yousuf, the brother of the second defendant had acquired a property and later formed a partnership. The property was made an asset of the Partnership firm. It seems, after the death of the second defendant's husband, a suit was instituted as OS No.326/98, alleging that the first plaintiff therein was entitled to half share of the property and also seeking partition of the partnership assets. In the meanwhile, Sri.Sayyid Yousuf died. Suffice to say that an ex parte decree was passed in OS No.326/98. When the defendants in the suit came to know about the ex parte decree, they moved the Trial Court by filing IA Nos.1163/03 and 1162/03 to have the ex parte decree in OS No.326/98 set aside and for condoning the delay in filing the said petition. The Munsiff's Court dismissed both the petitions. WPC 747/10 3 5. The matter was taken up in appeal before the District Court, Kasaragod as CMA No.33/05. The District Court set aside the ex parte decree, restored the suit to file and directed the Trial Court to dispose of the suit afresh on merits. That order was assailed by the first plaintiff by filing CRP No.147/07 before this Court and this Court restored the order of the Trial Court. It did not rest there. The matter was taken up before the Apex Court by filing SLP No.23503-23504-09 and a status quo order was passed by the Apex Court. 6. One cannot omit to note that the property involved in the earlier suit and the one involved in the present suit, i.e., in OS No.206/03 are one and the same. One has to remember that OS No.206/03 is a suit for recovery of possession from the defendants. 7. If as a matter fact, the Apex Court allows the petition filed before the said Court, then the issue involved in OS No.326/98 will be open for reconsideration. Then, the claim of the defendants in the suit, who were set ex parte, WPC 747/10 4 will have to be considered. 8. It was under these circumstances that the petitioner was constrained to move the lower Court as per IA No.1795/09 in OS No.206/03 to stay all further proceedings till the disposal of the SLP pending before the Apex Court. The Court below, noticing that the subject matters are entirely different, dismissed the said petition. The said order is assailed in this Writ Petition. 9. The learned counsel for the petitioner pointed out that the Court below was not justified in coming to the conclusion that the subject matters in the two proceedings are different. According to the petitioner, even the plaintiff in the suit had no such contention. The Apex Court had ordered status quo in the matter and that means, the position as on the date of the order will have to be maintained. Going by the averments in the plaint in OS No.206/03, the defendants are in possession of the property and if that be so, that will have to be continued. Therefore, it is contended that the Court below ought to WPC 747/10 5 have allowed the petition. 10. The respondents have filed a counter affidavit in this Writ Petition, pointing out that the Writ Petition has not disclosed the entire facts before this Court and the petitioner is not entitled to any reliefs in this Petition. It is pointed out that in fact OS No.206/03 has been decreed and the defendants were directed to surrender vacant possession of the property. The defendants were also directed to pay a sum of Rs.2,000/- per month as mesne profits to the plaintiffs. The said judgment and decree is produced as Ext.R1(a). Hence, according to the learned counsel for the respondents, the remedy of the petitioner is to file an appeal against the said Judgment and decree and not to seek stay of the trial of the suit. 11. The petitioner has filed a reply affidavit in which it is stated that the Judgment and decree in OS No.206/03 was an ex parte decree and it has been set aside by the Principal Munsiff's Court, Kasaragod by order WPC 747/10 6 dated 18.1.2010 in IA No.2255/09 and therefore, the petition under S.10 CPC will have to be reconsidered. 12. Even going by the averments in the plaint in OS No.206/03, the property involved is the subject matter of the earlier suit also. One must remember that the earlier suit was one for partition of the assets. Going by the case of the plaintiff in OS No.206/03, the earlier suit, the defendants had a share in the property involved in the suit. Therefore, if as a matter of fact, the Apex Court allows the petition filed before it, the decree in OS No.326/98 will have to go and the suit will have to be tried on merits though it may not mean that the contesting respondents have a right in the property. 13. It is in the above context that one has to view OS No.206/03. If as a matter of act, the properties involved are one and the same, obviously the decision in OS No.326/98 will have a bearing on the issue involved in OS No.206/03. One cannot omit to note that the first plaintiff is a party in the earlier suit also. The Court below has found WPC 747/10 7 that the properties involved in both the suits are different. Even in the IA filed before this Court, seeking to have the stay issued from this Court vacated, there is no claim for the deponents that the properties involved in both the suits are different. In fact, what they say is that since a decree has been passed in OS No.206/03, the remedy of the petitioner is to file an appeal against the said Judgment and decree. 14. It follows, therefore, that the Court below was not justified in dismissing IA No.1795/09 in OS No.206/03. Accordingly, the order in the said IA is set aside and the trial in the suit shall stand stayed under S.10 CPC until the matter pending before the Apex Court is disposed of. The Writ Petition is disposed of as above. P.BHAVADASAN, JUDGE sta WPC 747/10 8 WPC 747/10 9