Joy Joseph v. Dr. Thomas T. Chowattakunnel and Thomas Joseph

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE P.BHAVADASAN** **THURSDAY, THE 17TH MARCH 2011 / 26TH PHALGUNA 1932** **OP(C).No. 1068 of 2011(O)** **-------------------------------------** **O.S.NO.87/2008 of SUB COURT, PALA** **....................** ## **PETITIONER** **---------------------** **JOY JOSEPH, AGED 54 YEARS, S/O.JOSEPH MOOKKANTHOTTATHIL HOUSE, PARAPPALLY KARA, POOVARANI VILLAGE.** **BY ADV. SRI.T.K.PANKAJASHAN PILLAI SRI.SAJI PANKAJAKSHAN** **RESPONDENT(S):** **--------------------------** **1. DR.THOMAS T.CHOWATTAKUNNEL, AGED 7O YEARS, S/O.THOMAS, RESIDING AT CHOWATTAKUNNEL HOUSE, EDAPPLY KARA, BHARANAMANGANAM KARA.PIN-682 024** **2. THOMAS JOSEPH, AGED 65 YEARS, S/O.JOSEPH, RESIDING AT MOOKKENTHOTTATHIL HOUSE, KIZHAPRAYAR P.O., PARAPALLY KARA, POOVARANI VILLAGE, MEENACHIL TALUK., PIN-686 578.** **BY** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 17/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **P. BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - - O.P.(Civil). No. 1068 of 2011 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 17th day of March, 2011. ## **JUDGMENT** In this original petition filed under Article 227 of the Constitution of India, the petitioner assails Ext.P4 order issued by the Sub Court, Pala in I.A.13 of 2011 in O.S.100 of 2009. By the said order, the court dismissed a petition filed under Section 10 of the Code of Civil Procedure seeking stay of further proceedings in the suit pending before the said court. 2. Petitioner and the second respondent are near relatives. The first respondent is stated to be employed abroad as a doctor and the second respondent is now in U.S.A. Petitioner was engaged in real estate business and the first respondent approached the petitioner to have a partnership business and that was agreed upon. They decided to enter into an agreement of partnership for conducting real estate business. The details of the terms of O.P.(C). 1068/2011. 2 the agreement are made mention of in the petition, which need not be mentioned here as they are irrelevant for the present purpose. Suffice it to say, the petitioner instituted a suit for dissolution of partnership as O.S. 87 of 2008 before the Munsiff's Court, Erattupetta. 3. The defendants in the said suit instituted O.S.100 of 2009 before the Sub Court, Pala against the plaintiff in O.S.87 of 2008 and another person on the basis of cheques claiming that money was due to him. The petitioner entered appearance in the said suit and filed his written statement denying that any amount was due to the plaintiff in O.S.100 of 2009. 4. It is seen that O.S.100 of 2009 was listed for trial on 4.1.2011. On 1.1.2011 I.A. 13 of 2011 was moved before the Sub Court seeking to stay the suit under Section 10 of the Code of Civil Procedure on the ground that since the earlier suit is not decided and its decision will have a 3 O.P.(C). 1068/2011. bearing on the suit pending before the Sub court, Pala. it is not proper to proceed with O.S.100 of 2009. 5. The lower court considered the claims put forward in the suits and found that the two suits have nothing in common and dismissed the petition. 6. Learned counsel appearing for the petitioner pointed out that the court below was not justified in holding that the decision in one suit has no bearing on the other suit. Attention was drawn to the fact that the suit instituted by the petitioner herein was for dissolution of partnership, in which the payments said to have been made by the plaintiff in O.S.100 of 2009 will crop up for consideration and in which case it could not be said that the decision in one suit will not have any bearing on the other suit. At any rate, there is a possibility of conflicting decisions in the two suits. In support of his contention, learned counsel relied on the decisions reported in **Gupte Cardiac Care Centre and Hospital v. Olympic Pharma Care (P) Ltd.** ((2004) 6 SCC O.P.(C). 1068/2011. 4 756) and **National Institute of M.H. & N.S. v. C. Parameshwara** (AIR 2005 SC 242). 7. No doubt the above two decisions laid down the principle that in case the two suits are so connected, the matter involved in the two suits are identical and the decision in one suit will have direct bearing on the other suit, then the proceedings in one suit will have to be stayed, preferably the latter suit. In the decision reported in **Gupte Cardiac Care Centre and Hospital's case** (supra) it was held that the most desirable option would have been to try both the suits jointly. 8. In the case on hand, the suit instituted by the petitioner was one for dissolution of partnership. The issues raised in O.S.87 of 2008 are as follows: _“1) Whether there was a partnership business on real estate between the plaintiff and the 1[st] defendant as it is claimed by the plaintiff?_ O.P.(C). 1068/2011. 5 _2) Whether the plaint schedule properties are the partnership properties as it is claimed by the plaintiff?_ _3) Whether plaintiff is entitled for the declaration and dissolution of partnership between the 1[st] defendant and plaintiff as it is sought for?_ _4) Whether the account of partnership business between the plaintiff and the defendant is to be settled as sought for and whether the plaintiff is entitled to realise anything towards his capital investment or share of profit in the business._ _5) Whether the plaintiff is entitled for the relief of injunction to restrain the alienation of the plaint schedule properties as sought for?_ _6) Reliefs and costs.”_ 9. O.S.100 of 2009 instituted by the first defendant in O.S.87 of 2008 is a suit for money based on a cheque. The issues raised in the said suit are as follows: 6 O.P.(C). 1068/2011. _“1. Whether the 1[st] defendant as an agent of the 2[nd] defendant obtained any money from the plaintiffs?_ _2. Whether the plaintiff got a cause of action_ _against the 2[nd] defendant?_ _3. Whether the plaintiff is entitled to recover_ _the plaint amount from the defendants?_ _4. Reliefs and costs.”_ 10. The contention of the petitioner is that if O.S.100 of 2009 is decided, it will operate as res judicata on the other suit and may prejudice his rights. It is claimed that same issues are involved in both the suits. 11. The court below has correctly noticed that the subject matter involved, the issues involved and the causes of action are entirely different and there is nothing common in the two suits. Moreover, the petitioner has chosen to move the court below only on the eve of trial. If he was of the view that the decision in one suit will have a bearing on the other, he ought to have moved the court below early 7 O.P.(C). 1068/2011. enough to avoid such contingency. On going through the records, there is nothing to show that the order of the court below is either perverse or unjustified warranting interference by this court. There is no merit in this original petition and it is only to be dismissed. I do so. **P. BHAVADASAN, JUDGE** sb.