IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 24TH JULY 2008 / 2ND SRAVANA 1930 WP(C).No. 32477 of 2007(N) -------------------------- PETITIONER: ------------ VIJAYACHANDRAN, S/O.VIVEKANANDAN, RESIDING AT VARUVILAKOM HOUSE, T.C.48/114, AMBALATHARA, POONTHURA P.O., THIRUVANANTHAPURAM. BY ADV. SRI.M.R.ANANDAKUTTAN RESPONDENTS: ------------- 1. SURENDRAN, RESIDING AT GURUMANDIRAM, CHENKOTTUKONAM, CHEMPAZHANTHY .P.O., THIRUVANANTHAPURAM. 2. LATHIKA, W/O.SURENDRAN, RESIDING AT GURUMANDIRAM, CHENKOTTUKONAM, CHEMPAZHANTHY P.O., THIRUVANANTHAPURAM. 3. CHITHRA, D/O.KARUNAKARAN, CHITHRANJALI, PANACHAVILA LANE, PONGUMMOODU, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM. 4. SUSEELAN,S/O.PARAMESWARAN, PANACHAVILA VEEDU, NEAR PUMP HOUSE, PONGUMMOODU, THIRUVANANTHAPURAM. BY ADV. SRI.PIRAPPANCODE V.S.SUDHIR FOR R.1,R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.(C) No.32477 of 2007 EXT.P1 TRUE COPY OF THE PLAINT IN O.S.NO.530 OF 2006 EXT.P2 TRUE COPY OF THE APPEAL MEMORANDUM IN R.S.A.NO.298/07. EXT.P3 TRUE COPY OF THE MEMO. EXT.P4 TRUE COPY OF THE I.A.NO.8095 OF 2007 EXT.P5 TRUE COPY OF THE ORDER DATED 19.10.2007. //TRUE COPY// P.A. TO JUDGE. M.SASIDHARAN NAMBIAR, J. ------------------------------- W.P.(C) No.32477 of 2007 ------------------------------- Dated this the 24th July, 2008. J U D G M E N T This petition is filed under Article 227 of the Constitution of India by the second plaintiff in O.S.No.530 of 2006, on the file of Additional Munsiff Court, Thiruvananthapuram, to quash Ext.P5 order passed by learned Munsiff in I.A.No.8095 of 2007. I.A.No.8095 of 2007 is an application filed by the plaintiffs under Section 10 of Code of Civil Procedure to stay the suit till the disposal of RSA.No.298 of 2007 pending before this Court. The case of the plaintiffs in the said application is that respondents in the written statement contended that on the basis of an agreement between the parties, a road was already constructed through the northern side of plaint A and B schedule properties and it was constructed at their cost and coconut trees were cut and removed for the construction of the road and the road is completed and A.S.No.204 of 1999 filed challenging the decree in O.S.No.649 of 1998 was dismissed and they contended that the present suit is therefore barred by resjudicata and as RSA.No.298 of 2007 is pending, the suit is to be stayed till disposal of the second appeal. W.P.(C) No.32477 of 2007 2 2. The learned counsel appearing for the petitioner and learned counsel appearing for respondents were heard. 3. The argument of the learned counsel is that dispute in R.S.A.No.298 of 2007 and the present suit is the same, and it is on the existence of a road through the northern side of the plaint schedule property and in such circumstances learned Munsiff should have stayed the suit till the disposal of R.S.A.No.298 of 2007. 4. Under Ext.P5 order, learned Munsiff dismissed the application finding that in the plaint, plaintiffs have not pleaded anything about the earlier suit, O.S.No.649 of 1998, and the affidavit filed in support of the application does not disclose which exactly is the subject matter of the said suit. It was therefore found that it is not necessary to stay the suit under Section 10 of Code of Civil procedure. Though learned counsel appearing for the petitioner vehemently argued that as is clear from Ext.P2, memorandum of second appeal, dispute is with regard to the disputed way in the present suit also, and, therefore, the suit is to be stayed under Section 10 of Code of Civil Procedure. I cannot agree with the submission. W.P.(C) No.32477 of 2007 3 5. O.S.No.530 of 2006 is only for injunction. It was filed contending that plaintiffs are in possession of the plaint A and B schedule properties. Irrespective of the decision that may be taken in R.S.A.No.298/2007, if plaintiffs are not in possession of the plaint schedule properties, they are not entitled to the decree sought for. Similarly, if plaintiffs are in possession of the plaint A and B schedule properties, as claimed by them, irrespective of the finding of the right of way claimed in RSA.No.298/2007, plaintiffs may be entitled to the decree. In such circumstances, there is no necessity to stay the trial of the suit till disposal of RSA No.298/2007. Petition is dismissed. M.SASIDHARAN NAMBIAR, JUDGE nj.