Narayanan and Ambujakshi v. Raveendran and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 3RD DAY OF OCTOBER 2017/11TH ASWINA, 1939** **OP(C).No. 2270 of 2017 (O) --------------------------O.S.56/1994 OF THE MUNSIFF MAGISTRATE COURT, MANNARKKAD** ## **PETITIONER(S):** ## **-------------** **1. NARAYANAN, S/O.PUTHENPALLIYALIL KUNHIKRISHNAN EZHUTHASSAN, PUTHENPALLIYALIL HOUSE, BHEEMANADU, ALANELLUR NO.1 VILLAGE, MANNARKKAD TALUK, PALAKKAD DISTRICT.678 601.** **2. AMBUJAKSHI, D/O.PUTHENPALLIYALIL KUNHIKRISHNAN EZHUTHASSAN, PUTHENPALLIYALIL HOUSE, BHEEMANADU, ALANELLUR NO.1 VILLAGE, MANNARKKAD TALUK, PALAKKAD DISTRICT.678 601.** **BY ADVS.SRI.K.MOHANAKANNAN SMT.A.R.PRAVITHA** **RESPONDENT(S)/RESPONDENTS: --------------------------** **1. RAVEENDRAN, S/O.SIVASANKARAN EZHUTHASSAN, VEENATHPARAMBIL, IRUMPALASSERI P.O., OTTAPALAM TALUK, PALAKKAD DISTRICT.679 335.** **2. VIJAYAN,** **S/O.SIVASANKARAN EZHUTHASSAN, VEENATHPARAMBIL, IRUMPALASSERI P.O., OTTAPALAM TALUK, PALAKKAD DISTRICT.679 335.** **3. SATHYABHAMA,** **D/O.SIVASANKARAN EZHUTHASSAN, VEENATHPARAMBIL, IRUMPALASSERI P.O., OTTAPALAM TALUK, PALAKKAD DISTRICT.679 335. 4. GEETHA, D/O.SIVASANKARAN EZHUTHASSAN, VEENATHPARAMBIL, IRUMPALASSERI P.O., OTTAPALAM TALUK, PALAKKAD DISTRICT.679 335. R1-R4 BY ADVS. SRI.T.SETHUMADHAVAN (SR.) SRI.PUSHPARAJAN KODOTH SRI.K.JAYESH MOHANKUMAR SMT.VANDANA MENON SMT.N.DEEPA** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 03-10-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **EL** ## **OP(C).No. 2270 of 2017 (O)** ## **---------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS ----------------------EXHIBIT P1 TRUE COPY OF JUDGMENT IN OS.56/94 DATED 9.9.97. EXHIBIT P2 TRUE COPY OF THE DECREE IN OS.56/94 DATED 9.9.97. EXHIBIT P3 TRUE COPY OF THE OS.80/2014 BEFORE THE SUB COURT, OTTAPALAM. EXHIBIT P4 TRUE COPY OF THE EP.10/2017 IN OS.56/94OF MUNSIFF COURT,MANNARKKAD FOR DELIVERY OF THE FINAL DECREE SCHEDULE PROPERTY. EXHIBIT P5 TRUE COPY OF THE OBJECTION FILED BY THE PETITIONERS IN EP.10/2017. EXHIBIT P6 TRUE COPY OF THE EA.107/2017 IN EP.10/2017 IN OS.56/94 ON THE FILE OF THE MUNSIFF COURT, MANNARKKAD. EXHIBIT P7 TRUE COPY OF THE OBJECTION TO EA.107/2017. EXHIBIT P8 TRUE COPY OF THE ORDER IN EA.107/2017 IN EP.10/2017 DATED 10.7.2017.** ## **RESPONDENT(S)' EXHIBITS** **-----------------------** ## **NIL** ## **TRUE COPY** ## **P.S. TO JUDGE** **EL** ## **ANIL K. NARENDRAN, J.** ................................................... ## **O.P.(C)No.2270 of 2017** ................................................... **Dated this, the 03[rd] day of October, 2017** ## **J U D G M E N T** The petitioners who are the defendants 1 and 2 in O.S.No.56/1994 on the file of the Munsiff's Court, Mannarkad and also the plaintiffs in O.S.No.80/2014 on the file of the Sub Court, Ottapalam, have filed this original petition under Article 227 of the Constitution of India, seeking an order to set aside Ext.P8 order dated 10.07.2017 of the Munsiff's Court, Mannarkad in E.A.No.107/2017 in E.P.No.10/2017 in O.S.No.56/1994. By the said order, the Munsiff's Court dismissed E.A.No.107/2017 filed by the petitioners, under Section 10 of the Code of Civil Procedure, 1908 seeking stay of further proceedings in E.P.No.10/2017 in O.S.No.56/1994 till the disposal of O.S.No.80/2014 pending before the Sub Court, Ottapalam. In this original petition, the petitioners have also sought for an order directing the Sub Court, Ottapalam to dispose of O.S.No.80/2014 pending before that court within a time limit to be fixed by this Court and also to defer delivery O.P.(C)No.2270 of 2017 : 2 : of property in E.P.No.10/2017 in O.S.No.56/1994 on the file of the Munsiff's Court, Mannarkad, till then. 2. On 25.07.2017, when this original petition came up for admission, this Court issued notice on admission to the respondents by speed post. This Court has also granted an interim stay of all further proceedings in E.P.No.10/2017 in O.S.No.56/1994 on the file of the Munsiff's Court, Mannarkad for a period of three weeks. The said interim order, which was extended from time to time, was extended until further orders on 31.08.2017. 3. Heard the learned counsel for the petitioners and also the learned counsel for the respondents. 4. The sole issue that arises for consideration in this original petition is as to the legality or otherwise of Ext.P8 order passed by the Munsiff's Court, Mannarkad rejecting E.A.No.107/2017 filed by the petitioner seeking stay of all further proceedings in E.P.No.10/2017 in O.S.No.56/1994 till the disposal of O.S.No.80/2014 pending before the Sub Court, Ottapalam. 5. O.S.No.56/1994 is one filed by the 1[st] respondent O.P.(C)No.2270 of 2017 : 3 : herein for partition and separate possession of his 1/15[th] share in the plaint schedule properties with future mesne profit and cost. The petitioners herein, who are defendants 1 and 2 in that suit contested the matter, contending that plaint B schedule item Nos.1 and 2 are in their exclusive title and possession by virtue of Ext.B4 registered Will executed by their mother Parukutty Amma and they are in absolute possession of the said properties. The execution of the said Will was also proved by examining the witness to that document, as DW2. The Munsiff's Court decreed O.S.No.56/1994 by Ext.P1 judgment and passed Ext.P2 preliminary decree dated 09.09.1997 holding that plaint B schedule item Nos.1 and 2 is available for partition and that, the 1[st] respondent herein is entitled to 1/15[th] share. It was also held that, the petitioners herein are entitled to 1/3[rd] share each over the said properties, on depositing the requisite court fee. The preliminary decree passed in O.S.No.56/1994 has attained finality by the dismissal of A.S.No.84/1997 filed before the Sub Court, Ottapalam and R.S.A.No.970/2003 filed before this Court by the petitioners herein. The 1[st] respondent herein has also filed O.P.(C)No.2270 of 2017 : 4 : a final decree application in O.S.No.56/1994 and the Munsiff's Court passed a final decree dated 30.09.2014 in F.D.I.A. No.398/2003. 6. Subsequent to the final decree passed by the Munsiff's Court in F.D.I.A. No.398/2003 in O.S.No.56/1994, the petitioners herein filed O.S.No.80/2014 before the Sub Court, Ottapalam against the respondents herein and two others, who are the plaintiff and defendants 3 to 7 in O.S.No.56/1994, seeking a declaration that plaint schedule item Nos.1 and 2 properties in O.S.No.80/2014 are not covered by the preliminary decree in O.S.No.56/1994 and also the final decree in F.D.I.A. No.398/2003 of the Munsiff's Court, Mannarkad and as such, the said decrees are not binding on the said properties. The petitioners have also sought for a permanent prohibitory injunction restraining the respondents herein and the said Moidu from taking delivery of plaint schedule item Nos.1 and 2 properties in O.S.No.80/2014 or any part thereof in execution of the final decree passed in F.D.I.A. No.398/2003 in O.S.No.56/1994. In the said suit, the defendants have entered appearance and filed their written O.P.(C)No.2270 of 2017 : 5 : statement. 7. During the pendency of O.S.No.80/2014, the respondents herein filed E.P.No.10/2017 before the Munsiff's Court, Mannarkad for execution of the final decree passed in F.D.I.A. No.398/2003 in O.S.No.56/1994. In the said execution petition, the petitioners herein filed Ext.P5 objections dated 27.05.2017, which was accompanied by Ext.P6 application, i.e., E.A.No.107/2017, under Section 10 of the Code, seeking stay of further proceedings in E.P.No.10/2017 till the disposal of O.S.No.80/2014 pending before the Sub Court, Ottapalam. To the said application, the respondents herein filed Ext.P7 objections and after considering the rival contentions, the Munsiff's Court dismissed E.A.No.107/2017 by Ext.P8 order. 8. Section 10 of the Code of Civil Procedure, 1908 which deals with stay of suit provides that, no Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other Court in India O.P.(C)No.2270 of 2017 : 6 : having jurisdiction to grant the relief claimed, or in any Court beyond the limits of India established or continued by the Central Government and having like jurisdiction, or before the Supreme Court. Going by the explanation to Section 10, the pendency of a suit in a foreign Court does not preclude the Courts in India from trying a suit founded on the same cause of action. 9. In **Kumar S. v. Sudhakaran and others [2009** **(2) KLT 810]** a learned Judge of this Court held that, the basic requirement for the application of Section 10 of the Code of Civil Procedure is pendency of two suits in which the parties are same or the parties in one suit are persons claiming title under the parties in the other suit. To attract Section 10, the matter in issue in one suit must be directly and substantially in issue in the other suit. The object of Section 10 of the Code is to prevent Courts of concurrent jurisdiction from simultaneously entertaining and adjudicating upon two suits in respect of the same subject matter between the same parties. It is intended to avoid conflicting decisions being rendered by different Courts. One of the tests to be applied in the matter of O.P.(C)No.2270 of 2017 : 7 : stay under Section 10 of the Code is whether the decision in one suit would operate as res judicata in the other suit. If so, applying Section 10 of the Code, the subsequently instituted suit should be stayed. Though the pendency of the appeal against the decree in the previously instituted suit can be treated as pendency of the suit, once the suit is finally disposed of, there is no scope for applying Section 10 of the Code. Therefore, pendency of the execution proceedings in the previously instituted suit is not a ground to stay the subsequent suit, invoking Section 10 of the Code. 10. In the instant case, the preliminary decree passed in O.S.No.56/1994 has attained finality by the dismissal of A.S.No.84/1997 filed before the Sub Court, Ottapalam and R.S.A.No.970/2003 filed before this Court by the petitioners herein. The 1[st] respondent herein filed a final decree application in O.S.No.56/1994 and the Munsiff's Court, Mannarkad has passed final decree dated 30.09.2014 in F.D.I.A. No.398/2003. The petitioners herein are the 1[st] and 2[nd] respondents in that final decree proceedings. Once the suit filed by the 1[st] respondent herein as O.S.No.56/1994 is finally O.P.(C)No.2270 of 2017 : 8 : disposed of by passing a preliminary decree, followed by a final decree in F.D.I.A. No.398/2003, and the challenge made against the preliminary decree has attained finality by the dismissal of A.S.No.84/1997 and R.S.A.No.970/2003 filed by the petitioners herein, there is no scope for applying Section 10 of the Code to stay further proceedings in E.P.No.10/2017 in the previously instituted suit, i.e., O.S.No.56/1994 till the disposal of the subsequent suit, i.e., O.S.No.80/2014 pending before the Sub Court, Ottapalam. In that view of the matter, no interference is warranted in Ext.P8 order of the court below dismissing E.A.No.107/2017 in E.P.No.10/2017 filed by the petitioners herein, under Section 10 of the Code. 11. In **Sobhana Nair K.N. v. Shaji S.G.Nair (2016 (1) KHC 1)** a Division Bench of this Court held that, the law is well settled by a catena of decisions of the Apex Court that in proceedings under Article 227 of the Constitution of India, this Court cannot sit in appeal over the findings recorded by the lower court or tribunal and the jurisdiction of this Court is only supervisory in nature and not that of an appellate court. Therefore, no interference under Article 227 of the Constitution O.P.(C)No.2270 of 2017 : 9 : is called for, unless this Court finds that the lower court or tribunal has committed manifest error, or the reasoning is palpably perverse or patently unreasonable, or the decision of the lower court or tribunal is in direct conflict with settled principle of law. 12. In the result, the challenge made in this original petition fails. 13. The further relief sought for in this original petition is a direction to the Sub Court, Ottapalam, to dispose of O.S.No.80/2014, within a time limit to be fixed by this Court, and to defer delivery of the property in E.P.No.10/2017 in O.S.No.56/1994 until then. Once the challenge made against Ext.P8 order of the court below dismissing E.A.No.107/2017 in E.P.No.10/2017 stands repelled, the petitioners herein are not legally entitled for an order to defer delivery of the property in E.P.No.10/2017 in O.S.No.80/2014. However, after considering the submissions made by the learned counsel for the petitioners, this original petition is disposed of with a direction to the Sub Court, Ottapalam, to finally dispose of O.S.No.80/2014, as expeditiously as O.P.(C)No.2270 of 2017 : 10 : possible, at any rate, within a period of six months from the date of completion of pre-trial steps. Sd/- **ANIL K. NARENDRAN, JUDGE** Bb _[True copy]_ _P.A to Judge_