High Court of KeralaSingle Judge2012-01-20Original petition dismissed

Heather Luiz, Gilroy, Richard Stanely Savio, and Ryan Bernad Raymond v Regina B. Fernandez and Boswell Fernandez

Case / Petition Number:OPC No. 4068 of 2011 (O)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: S. S. Satheesachandran
Judgment Date: 2012-01-20
Court Decision / Holding: Original petition fails, and it is dismissed.
Final Disposition: Original petition dismissed

Parties to the Case

Appellants / Petitioners

Heather Luiz
Gilroy
Richard Stanely Savio
Ryan Bernad Raymond

Respondents

Regina B. Fernandez
Boswell Fernandez

Legal Representation & Advocates

Counsels for Petitioners

• P. Martin Jose
• P. Prijith
• Aneesh James
• Justine Jacob

Counsels for Respondents

• Tom Jose
• Geetha Job (Ozhukayil)

Case Synopsis & Summary

This Original Petition (OP) challenges Ext.P6 of OS No.481/2010 in the II Additional Munsiff’s Court, Ernakulam, seeking a stay of trial under Section 10 CPC on injunction proceedings. The petitioners are four defendants claiming co-ownership and enjoyment of a room within the plaint property, and the plaintiffs are Regina B. Fernandez and Boswell Fernandez who seek a perpetual prohibitory injunction against interference. The first plaintiff and the first defendant are sisters; the second plaintiff is their husband; the third and fourth plaintiffs are their children; the second defendant is the husband of the first defendant. The defendants contended that the subject matter of the injunction suit is already in adjudication in a prior partition suit (OS 652/1995), in which a preliminary decree was passed and is subject to challenge; a later suit for injunction should be stayed under Section 10 since there is potential for conflicting judgments. The Munsiff refused stay (Ext.P6). The High Court, exercising its visitorial jurisdiction under Article 227, examined whether the pendency of the partition suit bars the injunction suit. It held that the two suits do not involve the same subject matter or cause of action; relying on Challapalli Sugars Ltd. v. Swadeshi Sugar Supply Pvt. Ltd., the court found that the cited decision is not applicable to the facts here. Consequently, the original petition was dismissed.

Provisions of Law Cited

Section 10 of the Code of Civil ProcedureArticle 227 of the Constitution of India

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners argued that Section 10 CPC requires stay when two suits are pending on the same subject matter and same relief or where the subject matter is in adjudication in a prior suit. They submitted that the plaint property, including the room in dispute, is part of a previous partition suit (OS 652/1995) and that a preliminary decree has been challenged, with an appeal pending. Because the two suits concern the same property and related rights, stay would prevent conflicting outcomes and conserve judicial resources. They relied on Challapalli Sugars Ltd. v. Swadeshi Sugar Supply Pvt. Ltd. (AIR 1983 Calcutta 199) to support the principle that identity of subject matter warrants stay under Section 10, and argued that the relief sought in the injunction suit would be resolved in or by the earlier partition proceedings.

Contentions of Respondents

The respondents contended that the injunction suit and the partition suit do not present the same subject matter or cause of action; the earlier partition case concerns partition and ownership, whereas the present suit concerns injunction and use rights over a portion of the building. They argued that inclusion of the plaint property in the partition suit does not render the two actions identical, and that a stay would unnecessarily delay adjudication. They maintained that two independent proceedings are permissible where the reliefs and transactions differ, and that Section 10 does not apply merely because the property is common to both matters. They further argued that Challapalli Sugars is distinguishable on the facts and that the stay should be declined to avoid delaying legitimate litigation.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Challapalli Sugars Ltd., v. Swadeshi Sugar Supply Pvt. Ltd.	AIR 1983 Calcutta 199	Distinguished	The court discussed the cited Calcutta case but held that its ratio is not applicable to the facts of this case; the two suits do not have identical subject matter or transaction.

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Extracted Judgment Text

Exact text extracted from official judgment records.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 20TH DAY OF JANUARY 2012/30TH POUSHA 1933 ## **OPC.No. 4068 of 2011 (O)** {IN OS.481/2010 OF THE II ADDL.M.C., ERNAKULAM} ## **PETITIONER(S)/DEFENDANTS:** 1. HEATHER LUIZ, W/O.GILROY, AGED 52 YEARS, RESIDING AT LUIZ ESTATE, KALAMASSERY ERNAKULAM-683109. 2. GILROY, AGED 48 YEARS, RESIDING AT LUIZ ESTATE, KALAMASSERY, ERNAKULAM-683109. 3. RICHARD STANELY SAVIO, S/O.GILROY, AGED 30 YEARS, RESIDING AT LUIZ ESTATE, KALAMASSERY ERNAKULAM-683109. 4. RYAN BERNAD RAYMOND, S/O.GILROY, AGED 26 YEARS, RESIDING AT LUIZ ESTATE, KALAMASSERY ERNAKULAM-683109. BY ADVS.SRI.P.MARTIN JOSE SRI.P.PRIJITH SRI.ANEESH JAMES SRI.JUSTINE JACOB ## **RESPONDENT(S)/PLAINTIFF:** 1. REGINA B.FERNANDEZ, D/O.S.P.LUIZ, NOW TEMPORARILY RESIDING AT 65/2508, ANGELINA SOUTH KEERTHI NAGAR LANE, DESHABHIMANI ROAD ELAMAKKARA P.O., ERNAKULAM, KOCHI-682026. 2. BOSWELL FERNANDEZ, RESIDING AT 65/2508, ANGELINA, SOUTH KEERTHI NAGAR LANE DESHABHIMANI ROAD, ELAMAKKARA P.O., ERNAKULAM KOCHI-682026. RR1 & R2 BY SRI.TOM JOSE RR1 & R2 BY SMT.GEETHA JOB(OZHUKAYIL) THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 20-01-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: **OPC.No. 4068 of 2011 (O)** **:: ::** **APPENDIX** ## **PETITIONER(S) EXHIBITS** - EXT.P1: TRUE COPY OF THE PRELIMINARY DECREE IN OS 652/1995 OF THE SUB COURT, CHALAKUDY DATED 13-1-2004. - EXT.P2: TRUE COPY OF PLAINT IN OS 481/2010 FILED BY THE RESPONDENTS BEFORE THE IIND ADDL.MUNSIFF'S COURT, ERNAKULAM. - EXT.P3: TRUE COPY OF WRITTEN STATEMENT IN OS 481/2010 FILED BY THE PETITIONERS BEFORE THE II ND ADDL.MUNSIFF'S COURT, ERNAKULAM. - EXT.P4: TRUE COPY OF IA NO.5144 OF 2011 IN OS 481/2010 FILED BY THE PETITIONERS BEFORE THE IIND ADDL.MUNSIFF'S COURT, ERNAKULAM. - EXT.P5: TRUE COPY OF OBJECTION IN IA 5144/2011 IN OS 481/2010 FILED BY THE RESPONDENTS BEFORE THE IIND ADDL. MUNSIFF'S COURT, ERNAKULAM. - EXT.P6: TRUE COPY OF ORDER IN IA 5144 OF 2011 IN OS 481/2010 FILED BY THE PETITIONERS BEFORE THE IIND ADDL. MUNSIFF'S COURT, ERNAKULAM. ## **RESPONDENTS' EXHIBITS** NIL sk/- //true copy// P.S. to Judge. **S.S.SATHEESACHANDRAN, J. ----------------------------------------------O.P.(C)No.4068 of 2011-O ----------------------------------------------Dated this the 20[th] day of January, 2012** ## **JUDGMENT** Challenge made in the original petition against Ext.P6 order passed by the learned IInd Additional Munsiff, Ernakulam in O.S.No.481/10 declining the request made by the petitioners/defendants in the above suit for stay of trial under Section 10 of the Code of Civil Procedure (for short “the Code”}. The first plaintiff in the suit and the 1[st] defendant are sisters. The 2[nd] plaintiff is the husband and plaintiffs 3 and 4 their children. 2[nd] defendant is the husband of the 1[st] defendant. Sit was one for perpetual prohibitory injunction. The case of the plaintiffs, in brief, for a decree of injunction was that they have been in enjoyment of a room in the building situate in the plaint property and in view of the interference made by the defendants, they ## **O.P.(C)No.4068 of 2011-O** ## **:: 2 ::** are prevented from continuing to use that portion of the building. The first plaintiff and 1[st] defendant, the sisters, enjoyed co-ownership rights over the property. But, according to the petitioners, 1[st] defendant later by way of a family arrangement effected, the first petitioner ceased to have such rights over the property. Whatever that be, when the aforesaid suit came up for trial and included in the special list, at that stage, the defendants moved an application under Section 10 of the Code for stay of the suit contending that the subject matter of controversy involved is under adjudication in a previously instituted suit, which had been filed of the legal heirs of a brother (late) of the two sisters for partition in which the present plaint property was one among the items. Preliminary decree passed in that suit has been challenged by the 1[st] defendant in the present suit and it is pending for adjudication before this ## **O.P.(C)No.4068 of 2011-O** ## **:: 3 ::** court, was the case canvassed by the defendants to contend that the suit for injunction filed by the plaintiffs in the present case is liable to be stayed under Section 10 of the Code. The learned Munsiff, not being impressed by the case pleaded for to seek stay under Section 10 of the Code, turned it down under Ext.P6 order. Propriety, legality and correctness of that order is assailed in this original petition invoking the visitorial jurisdiction vested with this court under Article 227 of the Constitution of India. 2. I heard the counsel on both sides. 3. It is urged by the counsel for the petitioners that since the subject matter covered by the suit is involved in the previous suit for partition, and an appeal is pending thereto, the same relief canvassed in the suit could be agitated in such appeal and that being so, this is a fit case where Section 10 of the Code has to be applied, and ## **O.P.(C)No.4068 of 2011-O** ## **:: 4 ::** the learned Additional Munsiff was not justified in declining stay of the suit canvassed for by the petitioners. Reliance is placed by the counsel in Challapalli Sugars Ltd., v. Swadeshi Sugar Supply Pvt. Ltd. {AIR 1983 Calcutta 199} to contend that if the subject matter of the two suits are identical, even if the cause of action pleaded are different, the applicability of Section 10 barring the trial of the second suit till disposal of the earlier suit would have full application. Simple question that arises for consideration with respect to the challenge raised against Ext.P6 order is whether the pendency of the previous suit for partition, which has been filed by another co-owner, in which the plaint property is included as one of the items, can, by itself, bar or interdict another co-owner to institute a suit on a subsequent cause of action, which had arisen after the filing of the previous suit for partition. Section 10 of the Code has ## **O.P.(C)No.4068 of 2011-O** ## **:: 5 ::** application where simultaneously two suits are filed one after the other for adjudicating disputes over the same subject matter, and also same relief is sought for, which if followed the possibility of two divergent and contradictory verdicts by one or different courts is likely to occur. Essentially in considering the applicability of Section 10 of the Code, what has to be looked into is whether the subject matter of controversy is the same in the two suits. By no stretch of imagination can it be said that the controversy in the previous suit for partition and the later suit filed by the respondents as plaintiffs which is sought to be stayed is one and the same. In the decision relied on by the counsel in Challapalli Sugars Ltd., v. Swadeshi Sugar Supply Pvt. Ltd {AIR 1983 Calcutta 199} is the subject matter of controversy in the two suits arose from the same transaction. Whereas one of the suits filed was for recovery of ## **O.P.(C)No.4068 of 2011-O** ## **:: 6 ::** money in respect of goods delivered the other suit by the rival party was based on the allegation that the goods were not delivered. Dispute arising for adjudication from the same transaction between the parties in the two suits being the same, it has been held in the aforesaid decision the identity of the controversy with respect to the subject matter is decisive in considering the applicability of Section 10 of the Code. That decision is not applicable to the facts of the case, and I do not find any merit in the challenge raised against Ext.P6 order. Original petition fails, and it is dismissed. Sd/- (S.S.SATHEESACHANDRAN) JUDGE sk/- //true copy// P.S. to Judge.