Dismissed

Achuthan Nair v. Mohandas

Kerala HC9 Nov 2009WP(C)/767/2009

Case brief

AI extract

What is this about?

The High Court disposed of a writ petition challenging an order dismissing an application under Section 10 CPC. The Court held that no interim relief is warranted where the parties in the earlier and present suits are different, rendering Section 10 inapplicable despite identical issues.

What did the court decide?

Interference in the dismissal of the stay application was refused; the judgment was closed.

Achuthan Nair Vs Mohandas — Property and Title | Kerala HC (2009)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN

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MONDAY, THE 9TH NOVEMBER 2009 / 18TH KARTHIKA 1931

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WP(C).No. 767 of 2009(N)

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-----------------------------------OS.NO.210/2007 OF MUNSIFF COURT, WADAKKANCHERRY. ....................

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PETITIONER: -------------------

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ACHUTHAN NAIR, AGED 68, S/O.SREEDEVI AMMA, KANNETH HOUSE, CHIRAMANANGAD VILLAGE AND DESOM, TALAPPILLY TALUK.

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BY ADV. MR.G.SREEKUMAR (CHELUR).

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RESPONDENT: ----------------------

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MOHANDAS, S/O.KUNDUKULANGARA PULIASSERY PADMAVATHI AMMA, KUMARANELLUR VILLAGE DESOM, OTTAPALAM TALUK.

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BY ADVS. MR.THIYYANNOOR RAMAKRISHNAN, MR.ARUN KUMAR.P.

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/11/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C). NO.767/2009-N:

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APPENDIX

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PETITIONERS' EXHIBITS:

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EXT.P.1: COPY OF THE PLAINT IN O.S. NO. 210/07 OF THE MUNSIFF COURT, WADAKKANCHERY DTD. 12/04/07.

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EXT.P.2: COPY OF THE PLAINT IN O.S. NO. 99/06 OF THE MUNSIFF COURT, WADAKKANCHERY DTD. 03/03/06.

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EXT.P.3: COPY OF THE JUDGMENT IN O.S. NO. 99/06 DTD. 19/12/07 OF THE MUNSIFF COURT, WADAKKANCHERY.

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EXT.P.4: COPY OF THE I.A. NO. 1949/08 IN O.S. NO. 210/07 DTD. 18/09/08 OF THE MUNSIFF COURT, WADAKKANCHERY.

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EXT.P.5: COPY OF THE ORDER PASSED IN I.A. NO. 1949/08 IN O.S. NO. 210/07 DTD. 20/11/08 OF THE MUNSIFF COURT, WADAKKANCHERY.

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RESPONDENTS' EXHIBIT:

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EXT.RA: COUNTER FILED BY THE RESPONDENT IN I.A. 1949/2008 IN O.S. 210/2007 BEFORE THE MUNSIFF COURT, WADAKKANCHERY.

//TRUE COPY//

P.A. TO JUDGE.

Prv.

S.S.SATHEESACHANDRAN, J.

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W.P.(C).No.767 OF 2009

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Dated this the 9^th day of November 2009

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JUDGMENT

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Petitioner is the defendant in O.S No.210

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of 2007 on the file of the Munsiff Court, Vadakkanchery. The above suit is for declaration of title and consequential injunction, and the respondent is the plaintiff. Resisting the suit claim, petitioner/defendant has filed a written statement. Previously petitioner had filed another suit as O.S No.99 of 2006 in which the wife of the plaintiff in O.S 210 of 2007 was the defendant. In that suit, petitioner had sought for a declaration and consequential injunction. That suit was partly decreed. To the extent the decree was not granted petitioner had preferred an appeal and it is pending as A.S 65/2008 on the file of the District Court, Thrissur. Petitioner had moved an

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W.P.(C).No.767 OF 2009 Page numbers

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application under Section 10 of the Code of Civil Procedure setting forth a case that the issues involved in the previous suit which are being agitated in A.S 65/2008 are directly and substantially connected with the issues in the present suit filed by the respondent and so much so the trial of the present suit has to be stayed till the disposal of his appeal. That application was resisted by the respondent filing objection. The learned Munsiff after hearing both sides dismissed the application moved by the petitioner/defendant taking note that the plaintiff in the present suit was not a party in the previous suit and so much so whatever be the issues in the previous suit, it will not be binding on him. Propriety and correctness of the order passed by the learned Munsiff declining the request of the petitioner to stay the trial of the suit under Section 10 of the Code of Civil Procedure is challenged in the writ petition.

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W.P.(C).No.767 OF 2009 Page numbers

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2. I heard the learned counsel on both

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sides. The issues involved in both the suits are identical though the parties are different is the submission of the learned counsel for the petitioner. It is further submitted, the contentions raised by the wife of the present plaintiff in the previous suit to resist the suit claim of declaration by the petitioner in that suit is identical to the case canvassed by the respondent/plaintiff in the present suit and so much so, the court below ought to have stayed the trial of the present suit under Section 10 of the Code of Civil Procedure. I do not find any impropriety or illegality in Ext.P5 order passed by the court below turning down the request of the petitioner to stay the trial of the suit. Section 10 of the Code of Civil Procedure has application only when the matter in issue is directly and substantially issued in a previously instituted suit between the same parties. When parties

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W.P.(C).No.767 OF 2009 Page numbers

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involved in the previous suit are different from those who are involved in the present suit whatever be the identity of of issues canvassed in both the suits, it is not sufficient to stay the trial of the latter suit. No interference with Ext.P5 order passed by the learned Munsiff is called for. Writ petition is closed.

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Sd/-

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S.S.SATHEESACHANDRAN, JUDGE

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//TRUE COPY//

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P.A TO JUDGE

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vdv

Achuthan Nair v. Mohandas

Case brief

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Achuthan Nair v. Mohandas

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