IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN MONDAY, THE 19TH JANUARY 2009 / 29TH POUSHA 1930 WP(C).No. 1889 of 2009(Y) ------------------------------------------ IA.3350/2008 IN OS.504/2007 of ADDL.SUB COURT, IRINJALAKUDA .................... PETITIONER: MALATHIAMMA, D/O. PAPPIAMMA, MULLASSERY VEEDU, KARUMATHRA VILLAGE DESOM, P.O. KARUMATHRA. BY ADV. SRI.M.SHAJU PURUSHOTHAMAN SRI.K.S.RAJESH RESPONDENTS: 1. SAROJINI, D/O. MULLASSERY NANIKUTTY AMMA BHASURAM VEEDU, KONATHUKUNNU DESOM, THEKKUMKARA VILLAGE, P.O. KONATHUKUNNU, MUKUNDAPURAM TALUK. 2. M. VIMALA, D/O. MULLASSERY NANIKUTTY AMMA, KODAMANA VEEDU, TIRUVENKITOM, GURUVAYOOR, CHAVAKKAD TALUK. 3. JANAKI, D/O. MULLASSERY NANIKUTTY AMMA AND W/O. RAMDAS, RAJADHANI, CHERUMUKKU TEMPLE ROAD, IRINJALAKUDA DESOM, MANAVALSSERY VILLATE, MUKUNDAPURAM TALUK. 4. M. RAMADEVI, D/O. MULLASSERY NANIKUTTY AMMA, P.O. KONATHUKUNNU, MUKUNDAPURAM TALUK. 5. DILEEP, S/O. MULLASSERY GOVINDANKUTTY, MUKUNDAPURAM TALUK. 6. DEEPA, S/O. MULLASSERY GOVINDANKUTTY, MUKUNDAPURAM TALUK. 7. PADMAVATHY, D/O. MULLASSERY GOVINDANKUTTY, MUKUNDAPURAM TALUK. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. -------------------------- W.P.(C)No.1889 of 2009 Y -------------------------- JUDGMENT Petitioner is the tenth defendant in O.S.No. 504/07 on the file of the Sub Court, Irinjalakuda. It is submitted that the said suit is filed by respondents 1 to 4 claiming partition. According to the petitioner, as per the will executed by deceased Kunjukuttan Nair, plaint A schedule property is bequeathed in her favour and plaint B schedule property would devolve on the father of defendants 8 and 9 and husband of 11th defendant and that respondents 1 to 4, who are the plaintiffs in the said suit, do not have any right to claim partition of the scheduled properties; that she had earlier instituted O.S.No.653/07 before the Munsiff's Court, Kodungallur for discharging the obligations cast upon her as per the stipulations in the will executed by deceased Kunjukuttan Nair against the plaintiffs in O.S.No.504/07; that WPC 1889/09 2 respondents 1 to 4, who are the plaintiffs in that suit, are assailing the validity of the will in the said suit; that therefore, she filed I.A.No. 3350/08 in the court below for staying the proceedings under Section 10 of the CPC and that was dismissed by the court below vide Exhibit P7 order and that the said order is not tenable and has to be set aside. 2. Exhibit P7 order was passed by the court below on 6.12.2008 dismissing I.A.No.3350/08 filed under Section 10 of the CPC observing that in both the suits validity of the registered will 111/2000 executed by Kunjukuttan Nair is in issue; that the will has to be proved either way, in both the suits; that in O.S.No.653/07, respondents filed I.A.No.800/07 to stay that proceedings and in this suit the 10th defendant has filed petition to stay the proceedings under Section 10 CPC; that the intention of both the parties is to drag on the case; that neither of the parties moved for WPC 1889/09 3 transfer of O.S.No.653/07 from the Munsiff's Court to the Sub Court, Thrissur for joint trial; that the suit O.S. 504 is one of the year 2007 and that it will be listed in the month of January 2009 for trial. The court also observed that in the meanwhile parties can apply for a joint trial of both the cases. No application was made for joint trial. 3. It is submitted that the suit is posted for trial to 21.1.2009. The impugned order was passed on 16.12.2008. Copy of the order was delivered to the petitioner on 17.12.2008, as evidenced by the certified copy of Exhibit P7 order produced before me for perusal by the counsel for the petitioner. Still, this writ petition is filed only on 16.1.2009, almost on completion of one month from the date on which the copy of order was delivered to the petitioner and when the suit is posted for trial to 21.1.2009. WPC 1889/09 4 4. It is not disputed before me by the counsel for the petitioner that if a finding is entered into regarding the genuineness of the will in any one suit, that will operate as res judicata in the other suit. Hence, petitioner may prove the genuineness of the will in the first suit coming up for trial. No harm will be caused to the petitioner if at all the suit is not stayed under Section 10 of the CPC. The attempt of the petitioner is only to protract the litigation by not moving appropriate petition in time and even filing this writ petition on the 30th day of receipt of copy of Exhibit P7 impugned order when the suit stands posted for trial to 21.1.2009 in the special list. This writ petition, in the circumstances, is ill conceived and is dismissed. 19th January, 2009 (K.P.Balachandran, Judge) tkv