Kerala High Court
Gomathy vs Tata Global Beverages Ltd on 14 July, 2021
OP(C).1061/21 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
WEDNESDAY, THE 14TH DAY OF JULY 2021 / 23RD ASHADHA, 1943
OP(C) NO. 1061 OF 2021
(ORDER DATED 26.3.2021 IN IA.NO.3 OF 2020 IN OS.NO.287 OF 2019 OF
THE COURT OF THE MUNSIFF, ADIMALY)
PETITIONER/S:
1 GOMATHY
AGED 77 YEARS
W/O. RAMAR MSV, POWER HOUSE DIVISION ATHUKAD,
PALLIVASAL ESTATE, PALLIVASAL VILLAGE, IDUKKI - DT.,
PIN - 682265.
2 RAMAR
AGED 80 YEARS
S/O. CHELLAPANDY, MSV HOUSE, POWER HOUSE DIVISION
ATHUKAD, PALLIVASAL ESTATE, PALLIVASAL VILLAGE, IDUKKI
- DT., PIN - 682265.
3 MURUGESAN
AGED 52 YEARS
MSV HOUSE, POWER HOUSE DIVISION, ATHUKAD, PALLIVASAL
ESTATE, PALLIVASAL VILLAGE, IDUKKI - DT., PIN - 682265.
BY ADVS.
BOBBY GEORGE
JOY C. PAUL
RESPONDENT/S:
TATA GLOBAL BEVERAGES LTD.
KOLKATA, A PUBLIC LIMITED COMPANY, REGISTERED OFFICE AT
1, BISHOP LEFROY ROAD, KOLKATA WITH ITS SPECIAL PROJECT
OFFICE AT G. H. COMPLEX, MUNNAR K D H VILLAGE, REP. BY
V. THANKARAJ, DEPUTY MANAGER, KDHP COMPANY PVT. LTD.,
MUNNAR P. O., KDH VILLAGE, DEVIKULAM TALUK, IDUKKI
DIST., PIN - 685612.
OP(C).1061/21 2
BY ADVS.
V.ABRAHAM MARKOS
ISSAC THOMAS
P.G.CHANDAPILLAI ABRAHAM
ALEXANDER JOSEPH MARKOS
SHARAD JOSEPH KODANTHARA
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 14.07.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(C).1061/21 3
V.G.ARUN, J.
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O.P(C).No. 1061 of 2021
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Dated this the 14th day of July, 2021
JUDGMENT
Petitioners are the defendants in O.S.No.287 of 2019 on the files of
the Munsiff's Court, Adimaly filed by the respondents herein for a decree
of permanent prohibitory injunction restraining the petitioners from
trespassing upon the plaint schedule property and obstructing the
plaintiff's possession. Earlier, the respondent had filed O.S.No.237 of
1986 before the Munsiff's Court, Devikulam against the 2 nd petitioner
herein. The prayer in that suit was for declaration of title and recovery
of possession of plaint schedule properties therein. That suit was
decreed ex parte and the respondent filed E.P.No.66 of 1992 for getting
the decree executed. In the execution proceedings, Amin was deputed
for effecting delivery. The 1st petitioner herein obstructed the delivery
and filed E.A.No.13 of 1998 claiming to be the real owner of the
property. The court below dismissed E.A.No.13 of 1998 and the 1 st
petitioner preferred an appeal to the District Court, Thodupuzha, as
AS.No.15 of 2007. The appeal was allowed and the matter remanded for
fresh disposal and the 1st petitioner filed E.A.No.44 of 2011 for re-
delivery of the property, since, according to him, the property was
wrongly delivered to the decree holder in E.P.No.66 of 1992. During the
pendency of the execution proceedings, O.S.No.287 of 2019 was filed by
the respondent alleging that the petitioners had trespassed into the
plaint schedule property. In the suit, the petitioners filed I.A.No.3 of
2020 under Section 10 of CPC seeking to stay the trial of the suit till the
execution applications pending in E.P.No.66 of 1992 are decided. By
Exhibit P7 order, the learned Munsiff dismissed the interlocutory
application finding the issues involved in O.S.No.287 of 2019 and the
pending execution applications to be entirely different. Aggrieved, this
original petition is filed.
2. Heard.
3. Learned counsel for the petitioners reiterated the averments in
the original petition and contended that the subject matter in issue in
O.S.No.287 of 2019 and E.A.Nos. 6 of 2020 (earlier E.A.No.13 of 1998)
and E.A.No.44 of 2011 in E.P.No.66 of 1992 are substantially the same
and the court below ought to have treated the execution applications as
the former suit and O.S.No.287 of 2019 as the subsequently instituted
suit. It is contended that if the subsequently instituted suit is decided
without disposing the execution applications, that will cause substantial
prejudice to the petitioners.
4. Learned counsel for the respondent contended that the
petitioners are rank trespassers in the land owned by the respondent
Company and by Exhibit R1 the competent court had declared the title
of the respondent over the plaint schedule property and allowed
recovery of possession from the 1st petitioner. Based on the decree, the
plaint schedule property was delivered to the respondent on 8.1.2006.
The petitioner has filed obstruction petition (E.A.No.6 of 2020) and claim
petition (E.A.No.44 of 2011) in E.P.No.66 of 1992. The subsequent suit
was necessitated when the petitioners attempted to encroach upon a
portion of the land delivered in E.P.No.66 of 1992. Immediately after
filing this original petition, the 3rd petitioner encroached into the
respondent's land and erected a water tank, regarding which the
petitioner has filed a Police complaint. Circumstances being such,
Section 10 CPC has no application.
5. Section 10 CPC, the applicability of which is the bone of
contention, reads as under;
"10. Stay of suit .-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.
Explanation.-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."
The Section is specific to the effect that 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, shall not
be proceeded with. As far as the instant case is concerned, what is
pending is the execution proceedings pertaining to a suit decreed on
5.2.1990 and a suit for injunction to restrain the petitioners from
trespassing into the property delivered to the respondent based on the
decree in the earlier suit. Therefore, as rightly contended by the learned
counsel for the respondent, Section 10 has no application. The
contention that the execution applications filed by the petitioners should
be treated as suit for the purpose of invoking the power under Sectoin
10 is, to say the least, preposterous.
In the result, the original petition is dismissed.
Sd/-
V.G.ARUN, JUDGE
vgs
APPENDIX OF OP(C) 1061/2021
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE PLAINT IN OS 211/2017 OF
MUNSIFF COURT, DEVIKULAM DATED 26.06.2017
(RE-NUMBERED AS MTOP54/2017 AND LATER AS OS
287/2019 OF COURT OF MUNSIFF, ADIMALY)
Exhibit P2 TRUE COPY OF THE WRITTEN STATEMENT FILED BY
THE DEFENDANTS IN OS 211/2017 OF MUNSIFF
COURT, DEVIKULAM DATED 26.06.2017 (RE-
NUMBERED AS MTOP54/2017 AND LATER AS OS
287/2019 OF COURT OF MUNSIFF, ADIMALY) DATED
19.07.2017.
Exhibit P3 TRUE COPY OF THE PLAINT IN OS 237/1986 OF
MUNSIFF COURT, DEVIKULAM DATED 3.9.1986.
Exhibit P4 TRUE COPY OF THE WRITTEN STATEMENT IN OS
237/1986 OF MUNSIFF COURT, DEVIKULAM DATED
16.06.1987.
Exhibit P5 TRUE COPY OF THE PETITION BEARING IA
NO.3/2020 IN O.S.287/2019 DATED 10.11.2020
OF ADIMALY MUNSIFF COURT.
Exhibit P6 TRUE COPY OF THE OBJECTION FILED TO IA
NO.3/2020 IN O.S.287/2019 DATED 11.01.2021
OF ADIMALY MUNSIFF COURT.
Exhibit P7 TRUE COPY OF THE ORDER PASSED IN IA
NO.3/2020 IN O.S.287/2019 DATED 26.03.2021
OF ADIMALY MUNSIFF COURT.
Exhibit P8 TRUE COPY OF THE PETITION BEARING
NO.EA13/1998 IN EP 66/1992 IN O.S.237/1986
OF MUNSIFF COURT, DEVIKULAM.
Exhibit P9 TRUE COPY OF THE PETITION BEARING
NO.EA44/2011 IN EP 66/1992 IN O.S.237/1986
OF MUNSIFF COURT, DEVIKULAM.
