MARAKKAR HAJI Vs. MOOSAKKUTTY HAJI

JUDGEMENT

(1.) The question involved in this Original Petition is whether the trial of a suit which was filed at an earlier point of time could be stayed invoking Section 10 of the Code of Civil Procedure on the ground that a subsequently instituted appeal is pending before the Appellate Authority under the Kerala Land Reforms Act. The petitioners are defendants 2, 3 and 12 in O.S. No. 136 of 2008 on the file of the Sub Court, Tirur filed by respondents 1 to 3 for a permanent prohibitory injunction. The plaintiffs relied on a purchase certificate issued by the Land Tribunal in favour of their predecessor interest.

(2.) Defendants 2, 3 and 12 filed A.A. No. 53 of 2008 on the file of the Appellate Authority, Thrissur, challenging the order passed by the Land Tribunal granting purchase certificate in favour of the predecessor in interest of the plaintiffs. That appeal is also pending. Defendants 1, 2, 3, 5, 6 and 12 filed I.A. No. 3768 of 2009 before the court below under Section 10 of the Code of Civil Procedure to stay the trial of the suit pending disposal of the appeal before the Appellate Authority. The court below dismissed the application, which is under challenge in this Original Petition. The court below held that Section 10 of the Code of Civil Procedure cannot be invoked to stay the trial of a suit pending disposal of appeal before the Appellate Authority. The court below relied on the decision in Korb Chacko v. Mathew,1995 2 KerLT 883.

(3.) Section 10 of the Code of Civil Procedure 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 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".