MATHEW Vs. ELIKUTTY

JUDGEMENT

(1.) Finer points touching Section 11 and Order II Rule 2 of the Code of Civil Procedure, 1908 (in short, "the Code") arise for consideration. In fact, a decision thereon will resolve the issues in this case fully and finally, as the questions of fact are subservient to the legal issues.

(2.) This appeal arises out of O.S.No.166 of 1994 before the Sub Court, Palakkad. Original appellant was the plaintiff. He died pending the appeal; his legal representatives are additional appellants 2 to 7. The suit is one for specific performance of Ext.A3 contract dated 18.09.1993, executed between the plaintiff and the 1st defendant, for herself and on behalf of her children (defendants 2 to 4), who were minors at that time. This suit was tried by the court below along with O.S.No.164 of 1994. Details regarding O.S.No.164 of 1994 are relevant only for the purpose of considering whether the present suit is hit by the principles in Order II Rule 2 and Section 11 of the Code.

(3.) Brief facts relevant about O.S.No.164 of 1994 are that it was a suit for prohibitory injunction simplicitor, filed by the defendants in this suit (respondents herein) against the plaintiff (original appellant). O.S.No.164 of 1994 was filed with the averments that the defendants therein tried to trespass upon the property involved in Ext.A3 contract and reduce the property into their possession. Trial court, after jointly trying the suits, found that the original appellant (plaintiff) was not entitled to get a relief of specific performance of Ext.A3 contract and his suit was dismissed. Consequently, O.S.No.164 of 1994 filed by the respondents was decreed. Aggrieved by the decree in O.S.No.164 of 1994, the original appellant preferred an appeal before the District Court, Palakkad as A.S.No.43 of 1998. The judgment in the above appeal has been produced by the appellants along with I.A.No.4447 of 2010 in this appeal. District Court's judgment would show that the appeal was dismissed in limine at the stage of admission hearing under Order XLI Rule 11 of the Code. It was observed by the District Judge that the trial Judge was fully justified in decreeing O.S.No.164 of 1994. It was further found by the District Judge that none of the observations by the trial Judge in O.S.No.164 of 1994 would operate as res judicata in O.S.No.166 of 1994 because there was no issue regarding the right of the appellant for a decree for specific performance of Ext.A3. With these observations, the appeal was dismissed in limine.