PIONEER TOWERS OWNERS WELFARE Vs. SPAGS FAMILY TRUST

JUDGEMENT

(1.) Petitioners are defendant Nos.1 to 3 in O.S.No.115 of 2008 of the court of learned Principal Sub Judge, Ernakulam. That is a suit filed by respondent No.1 for a decree for mandatory injunction to direct petitioners to hand over possession of the property scheduled therein and for prohibitory injunction. Respondent No.1 claimed to have acquired right, title and interest over the suit property as per document No.2460 of 1998. That suit was posted for trial in the list on 01-10-2010. Petitioners filed I.A.No.6651 of 2010 on 25-09-2010 for stay of trial of O.S.No.115 of 2008 under Section 10 of the Code of Civil Procedure (for short, "the Code"). Reason stated is that connected suit (O.S.No.174 of 1999) is under trial in the court of learned Additional Sub Judge-II, Ernakulam. Learned Principal Sub Judge vide Ext.P9, order dismissed the application against which this petition is filed under Article 227 of the Constitution. It is contended by learned counsel that in both the cases, subject matter is same and issue to be decided is also same and hence it is necessary to stop trial of O.S.No.115 of 2008. Learned counsel states that O.S.No.115 of 2008 is coming up for trial in the list on 19-10-2010.

(2.) It is seen that respondent No.1 has claimed right over the disputed property as per assignment deed No.2460 of 1998 executed by respondent No.2. In respect of the property referred to therein and scheduled in O.S.No.115 of 2008 respondent No.1 prayed for a decree for mandatory injunction to direct petitioners to hand over possession of the said property which according to him, was locked by the petitioners. In O.S.No.174 of 1999 petitioners sued for a declaration as to what all are the common areas and for injunction against alienation of the common area. Learned counsel states that respondent No.1 (plaintiff in O.S.No.115 of 2008) is defendant No.8 in O.S.No.174 of 1999. In O.S.No.174 of 1999, evidence is already recorded. I must bear in mind that in spite of the fact that sale deed as per which respondent No.1 is claiming right, title and interest was executed in the year 1998 (document No.2460 of 1998) there is no prayer in O.S.No.174 of 1999 filed thereafter to set aside document No.2460 of 1998. In view of that, I do not find reason to stay trial of O.S.No.115 of 2008 nor do I find reason to interfere with Ext.P9, order.

(3.) It is submitted by learned counsel that O.S.No.115 of 2008 is coming up for trial in the list on 19-10-2010 and it will take time for petitioners to produce the relevant documents as evidence in that case. No direction can be given in this proceeding to adjourn trial of O.S.No.115 of 2008. It is for petitioners to make appropriate request to the learned Sub Judge for further time if circumstances warranted that. This petition is dismissed with the above observation.