OP(C) No. 213 of 2012 · Kerala High Court

OP(C).No. 213 of 2012 (O) -------------------------3. SHABEENA, W/O. NAZEER, RESIDING AT HOUSE NO. 180, MARANALLOOR PANCHAYAT, MARANALLOOR VILLAGE, KANDALA (PO), TRIVANDRUM-695512. R3 BY ADV. SRI.K.SIJU KAMALASANAN, R3 BY ADV. SRI.S.ABHILASH R2 BY ADV. SRI.P.B.KRISHNAN BY ADV. SMT.GEETHA P.MENON BY ADV. SRI.N.AJITH BY ADV. SRI.P.B.SUBRAMANYAN THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 14-03-2012, THECOURT ON THE SAME DAY DELIVERED THE FOLLOWING:DST OP(C).No. 213 of 2012 (O) -------------------------APPENDIXPETITIONER'S EXHIBITS:EXT.P1:COPY OF THE PLAINT IN O.S. NO. 799/2008 ON THE FILE OF ADDITIONAL MUNISIFF'S COURT-II, NEYYATTINKARA.EXT.P2:COPY OF THE PLAINT IN O.S. NO. 489 OF 2009 ON THE FILE OF MUNISIFF'S COURT, NEYYATTINKARA.EXT.P3:COPY OF THE WRITTEN STATEMENT IN O.S. NO. 799/2008.EXT.P4:COPY OF THE WRITTEN STATEMENT FILED BY 2ND RESPONDENT IN O.S. NO. 799/2008.EXT.P5:COPY OF THE WRITTEN STATEMENT IN O.S. NO. 489 OF 2009EXT.P6:COPY OF THE WRITTEN STATEMENT FILED BY 2ND RESPONDENT IN O.S. NO. 489/2009.EXT.P7:COPY OF THE WRITTEN STATEMENT FILED BY 3RD RESPONDENT TO THE COUNTER CLAIM OF THE PETITIONER. EXT.P8:COPY OF THE PETITION UNDER SECTION 10 OF C.P.C. TO STAY THE TRIAL OF THE SUIT TILL THE DISPOSAL OF R.F.A NO. 428 OF 2009 FILED BY 2ND RESPONDENT (2ND DEFENDANTIN O.S. NO. 799/2008) DATED 4.8.2010.EXT.P9:COPY OF THE OBJECTION FILED BY THE PETITIONER TO EXHIBIT P-8 DATED 5.8.2010.EXT.P10:COPY OF THE ORDER DATED 5.8.2010 IN O.S. NO. 799/2008OF THE ADDL. MUNISIFF-II, NEYYATTINKARA.EXT.P11:COPY OF THE I.A. NO. 2537 OF 2010 FOR STAYING THE TRAIL OF THE SUIT UNDER SECTION 10 OF C.P.C. FILEDBY 3RD RESPONDENT IN O.S. NO. 489 OF 2009.EXT.P12:COPY OF THE OBJECTION FILED BY THE PETITIONER TO EXHIBIT P-11.EXT.P13:COPY OF THE COPY OF THE ORDER DATED 22.5.2010 STAYING THE TRAIL OF O.S. NO. 489 OF 2009 IN I.A. NO. 2537 OF 2010 IN O.S. NO. 489/2009 OF THE PRL. MUNISIFF'S COURT,NEYYATTINKARA.EXT.P14:COPY OF THE PLAINT IN O.S. NO. 236 OF 2008 ON THE FILE OF SUB COURT, NEYYATTINKARA.EXT.P15:COPY OF THE ORDER IN I.A. 2381/2009 IN R.F.A. NO. 428/2009 OF THIS HON'BLE COURT.(CONT..) OP(C).No.

213 of 2012 (O) -------------------------EXT.P16:COPY OF THE WRITTEN STATEMENT IN O.S. NO. 236 OF 2008FILED BY THE PETITIONER.EXT.P17:COPY OF THE JUDGMENT DATED 29.6.2009 IN O.S. NO. 236 OF2008 ON THE FILE OF SUB COURT, NEYYATTINKARA. RESPONDENTS' EXHIBITS : NIL // TRUE COPY//P.A. TO JUDGEDST S.S. SATHEESACHANDRAN, J.------------------------------------------OP(C) No. 213 OF 2012------------------------------------------Dated this the 14th day of March, 2012J U D G M E N TOriginal petition has been filed seeking the followingreliefs;

A. That all records relating to Exhibits-P10 and P13orders be called to this Hon'ble Court and Exhibits-P10 and P13 cancelled or set aside;B. The lower Court be directed to proceed with thetrial of Exhibits-P1 and P2 suits pending before thelower Court; AndC. That the Petitioner be granted such further reliefsas are appropriate and incidental to this OriginalPetition.

Challenge in the original petition is against Exts.P10 and P13 orders, passed in two suits, staying thetrial of such suits under Section 10 of the Code of CivilProcedure. In short, facts in brief to the extent necessaryfor disposal of this original petition can be stated thus; twosuits were instituted before two different Munsiff Courts in Neyyatinkara as OS Nos:799/2008 and 489/2009 in which OP(C) NO. 213 OF 2012..2..the subject matter and defendants were same, but theplaintiffs were different. In respect of the same building, inboth suits, the respective plaintiff claimed tenancy underthe 2nd defendant, and they sought for perpetual prohibitoryinjunction against the 1st defendant with whom the 2nddefendant entered into an agreement for sale of theproperty comprising such building. Both plaintiffs, claimingto be in occupation of the building by virtue of separatetenancy with the 2nd defendant, sought for the reliefs asaforesaid. Suit claims were resisted by the common 1stdefendant, the petitioner herein. The common 2nddefendant in the two suits had instituted a suit for specificperformance of an agreement of sale against the common2nd defendant in the suit as OS No:236/2008 before the SubCourt, Neyyatinkara. When the aforesaid two suits, OSNos:799/2008 and 489/2009 came up for trial, therespective plaintiff therein moved separate applicationbefore the respective Munsiff Court seeking for stay of the OP(C) NO. 213 OF 2012..3..trial of the suits, canvassing the pendency of an appealpreferred against the decree passed in OS No:236/2008 bythe common 2nd defendant in the above suit against thecommon 1st defendant. Those applications have beenallowed by the respective court. Ext.P10 is the orderpassed for staying the trial of OS No:799/2008 and Ext.P13the order passed in OS No:489/2009. Propriety andcorrectness of those orders are impeached in this originalpetition by the common 1st defendant in those suits invokingthe supervisory jurisdiction under Article 227 of the Constitution of India.

I heard the learned counsel on both sides. In boththe suits, the respective plaintiff therein has obtainedinterim injunction restraining the owner, the common 1stdefendant, from forcibly evicting them from the building, onthe basis that they have tenancy over the building under thecommon 2nd defendant in such suit, who even on admitted OP(C) NO. 213 OF 2012..4..facts claimed right over the building only on the basis of anagreement of sale. Suit preferred by him has now beendisposed of directing refund of the sale price collected. Asagainst that decision, an appeal is pending before this Court, is the submission of the learned counsel for thepetitioner. It is further submitted that the issue involved inthe two suits requiring adjudication by the court has nonexus or connection with the dispute covered with the suitfor specific performance and in any view of the matter, there is no scope for application of Section 10 of the Code of Civil Procedure for staying the trial of such suits. Anagreement of sale by itself does not create any interest overthe property and, further, the subject matter in the suit forspecific performance involve 39.65 ares of land comprisingthe building shown in the two suits, is the furthersubmission of the learned counsel for the petitioner, pointing out that the plaintiff in the respective suit islitigating not under the same title as that the plaintiff in the OP(C) NO. 213 OF 2012..5..suits for specific performance.

The learned counsel for the respondents 2 and 3submits that no interference is warranted with thediscretion exercised by the courts below in passing Exts.P10and P13 orders for staying the trial of the two suits under Section 10 of the Code of Civil Procedure having regard tothe diverse facts presented in the suit in relation to the suitfiled by the common 2nd defendant against the common 1stdefendant.

Perusing into Exts.P10 and P13 orders passed inthe respective suit, for staying trial of the suits withreference to the circumstances presented by the counsel onboth sides and materials tendered in the case, I find therewas total nonapplication of mind by the two courts ininvolving Section 10 of the Code of Civil Procedure forstaying the suits. Evidently, conflicting tenancy claims have OP(C) NO. 213 OF 2012..6..been set up over the same building as under the common2nd defendant, in the two suits to seek decree of injunctionagainst the owner of that building - the common 1stdefendant. The fact that the common 2nd defendant had anagreement of sale with the owner and he filed a suit forenforcement of that agreement as against the owner, the 1stdefendant, would not enable the respective plaintiff in thetwo suits to contend that their Suits have to be stayed till adecision is arrived at in the suit for specific performance. Exts.P10 and P13 orders are clearly unsustainable andliable to be set aside. I do so. The courts concerned havingseizin over the suits are directed to proceed with the trial ofthe cases and dispose them in accordance with law. Sd/-S.S. SATHEESACHANDRAN, JUDGEbka/-//True copy//PA to Judge