IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 6TH APRIL 2010 / 16TH CHAITHRA 1932 WP(C).No. 4148 of 2009(R) ------------------------- OS.582/2004 of II ADDL.SUB COURT,ERNAKULAM .................... PETITIONER(S): --------------- T.A.SALEEM, S/O.P.A.ABDUL RAHIMAN, AGED 52 YEARS, RESIDING AT "NOOR" NARAKATHARA ROAD, ERNAKULAM. BY ADV. SRI.S.R.DAYANANDA PRABHU RESPONDENT(S): --------------- 1. M.A.SAFOORA, W/O.MOHAMMED YAHIA, AGED ABOUT 43 YEARS, NO.55, WILLINGDON STREET, RICHMOND TOWN, BANGALORE - 560 025. 2. YAHIA, S/O.MOHAMMED, AGED 47 YEARS, RESIDING AT KADEEJA BUILDING, MARKET ROAD, ERNAKULAM. ADV. SRI.SHAHUL HAMEED MOOPPAN FOR R THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/04/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC.4148/09 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE PLAINT DT 25-10-2004. P2 COPY OF THE JUDGMENT DT 13-11-2007 P3 COPY OF THE JUDGMENT DT 15-03-2007 P4 COPY OF THE IA DT 7-10-08 FILED BY PETITIONER P5 COPY OF THE COUNTER AFFIDAVIT DT 13-10-08 P6 COPY OF THE IA 7234/08 DT 7-10-08 P7 COPY OF THE COMMON ORDER DT 16-10-08 RESPONDENT'S EXHIBITS R2(A) COPY OF THE PLAINT DT 16-5-05 R2(B) COPY OF THE RFA DT 1-1-08. // True Copy // P.A. To Judge P.BHAVADASAN, J. ------------------------- W.P (C) No.4148 of 2009 -------------------------- Dated this the 6th April, 2010 J U D G M E N T Two I.A Nos.7197/2008 and I.A No.7234/2008 were disposed of by common order dated 16.10.2008 by the court below. Both petitions stood allowed. 2. I.A No.7234/2008 was one for re-opening of the evidence of the defendant. The I.A was filed under Section 10 of the C.P.C for stay of trial in O.S No.582/2004 on the ground that the 1st respondent had filed R.F.A No.254/2008 before this Court challenging the judgment and decree passed in O.S No.283/2005. 3. Petitioner is the plaintiff in O.S No.582/2004. The suit was one for partition. Copy of the plaint is produced as Ext.P1. Second respondent is the husband of the 1st respondent. It is claimed that plaint schedule property was acquired by the petitioner along with his brother and sisters under sale deed No.1240/1987. As per the sale deed T.A Shukoor got 6/10 shares and others got 1/10 share each. Petitioner also claims that he purchased shares of T.A Sulekha and 6 shares of T.A Shukoor as per W.P (C) No.4148 of 2009 2 sale deed No.1921/1996. Therefore, petitioner claimed a total of 8/10 shares of the property. 4. Respondents purchased 1/10 share of T.A Shukoor and 1/10 share of T.A. Abdul Samad as per sale deed No.5163/1992. Therefore, the petitioner has obtained 8/10 shares and first respondent acquired 2/10 shares. It is alleged that after receipt of summons in the partition suit, the 2nd respondent, husband of the first respondent filed O.S No.283/2005 before the Principal Sub Court, Ernakulam seeking specific performance of the agreement said to have been entered into between the petitioner herein and 2nd respondent. Petitioner is the first defendant in the said suit. The 1st respondent herein sought to get herself impleaded in the above suit. That was allowed. It is pointed out that petitioner had not claimed any relief against the 1st respondent herein. Petitioners has filed a written statement in the suit filed by the 2nd respondent. The suit was one for partition. The suit was posted for trial on 13.11.2007. Since the defendant did not co-operate with the trial of the suit, he was set ex parte. Ex parte decree was passed on 13.11.2007. Copy of the W.P (C) No.4148 of 2009 3 judgment is produced as Ext.P2. On motion by the defendants that was set aside and and the suit was restored to file. 5. In the meanwhile, O.S No.283/2005 for specific performance of the agreement was tried and disposed of vide judgment dated 15.3.2007. Copy of the judgment is produced as Ext.P3. Petitioner points out that the trial of the suit O.S No.582/2004 was commenced on 4.10.2008. PW1 was examined and Exts. A1 to A7 were marked cross- examination of the plaintiff was completed. After examining the plaintiff by the 2nd respondent's counsel submitted that the 2nd respondent has no evidence. Recording the submission of the counsel for 2nd respondent, the case was posted for arguments on 15.10.2008. 6. It is stated that on 13.10.2008, the respondents herein filed I.A No.7197/2008 under Section 10 of C.P.C for stay of trial of O.S No.582/2004 on the ground that the first respondent has filed an appeal as RFA No.254/2008 against the judgment and decree in O.S No.283/2005. Copy of the petition is produced as Ext.P4. Petitioner had W.P (C) No.4148 of 2009 4 also filed I.A No.7234/2008 for re-opening the evidence. Copy of the application is produced as Ext.P6. 7. The court below after hearing both petitions, allowed them. 6. Learned counsel for the petitioner points out that the present suit being the former suit, stay could not have been granted and there is no merit in the contention take up in the application for stay of trial. Issues in the two said applications are entirely different. 7. Learned counsel for the respondents have filed a counter affidavit in this petition. Section 10 of the C.P.C points out that 151 would be in the interests of justice. At any rate, there is no reason to interfere with the order on I.A No.7197/2008. Section 10 of the C.P.C reads as follows: "No Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other Court in India having jurisdiction to grant the relief claimed, or in any Court beyond the limits of India established or continued by the Central Government and having like jurisdiction, or before the Supreme Court." W.P (C) No.4148 of 2009 5 8. The litmus test to determine if a subsequent suit should be stayed under Sec.10 of C.P.C is to see if the decision in the former suit will be res judicata in the second suit. In the case on hand there is no dispute that issues are different and parties are also different. May be that decision in one suit may affect the other suit indirectly. But that is not a ground to stay the present suit which in fact was filed at earlier point of time. 9. The court below has therefore not justified in staying the trial while handling a petition under Sec.10 of C.P.C. Therefore, the order cannot be sustained. 10. The petition is partly allowed and the order in I.A. No.7197/2008 staying the trial of O.S No.582/2004 is set aside. P.BHAVADASAN, JUDGE ma W.P (C) No.4148 of 2009 6 W.P (C) No.4148 of 2009 7