This writ petition under Article 227 of the Constitution of India is directed against Ext.P4 order whereby the court below declined to stay the proceedings in O.S.No.473/1994 under Section 10 of the Code of Civil Procedure. 2. The petitioners before the court below were defendants 16 to 18 in the suit. It is pointed out that O.S.No.553/1991 was filed by defendants 1 to 14 for setting aside the sale deeds in favour of defendants 18 to 27 and for recovery of possession of plaint schedule property. That suit was decreed in part. The petitioners before the court below challenged the decree and A.S No.876/1996 was pending before this Court. If it so happened that the appeal is allowed as sought for by the appellant before that court, then it is contended that the plaintiff in O.S.No.473/1994 will not be entitled to any relief or in other words, the contention is that issues that are involved in O.S.No.473/1994 and in the appeal pending before this Court are identical and the decision in one case may binding on the other. It is on that basis Section 10 CPC petition was filed.
3. The plaintiff in the suit resisted the petition. It was pointed out by the plaintiff that in O.S.No.553/1991 filed by the defendants 1 to 14 sale deeds were set aside and therefore that issue does not survive for consideration. If at all the petitioner had a case that the issues are identical, he should have approached the court long before and not at the fag end of the trial which shows that the motive of the petitioner is only to prolong the disposal of the suit. He therefore prayed for dismissal of the petition.
4. The lower court, after appreciating the materials before it, came to the conclusion that sufficient grounds to stay the proceedings in O.S.No.473/1994 had not been made out and accordingly dismissed the petition.
5. Learned counsel appearing for the petitioner before this Court pointed out that the court below has omitted to note that the issue involved in O.S.No.473/1994 and in the appeal pending before this Court is one and the same and the decision in one case may bind on the other. It was pointed out that it is a typical instance where Section 10 CPC is attracted and therefore trial of O.S.No.473/1994 may be stayed.
6. Learned counsel appearing for the respondents, on the other hand, pointed out that in the decree passed in the earlier suit, it is clearly stated that sale deeds are set aside and nothing more remains to be considered. Further, it is pointed out that it was not as if that the petitioner had approached the court at the first instance to but they waited till almost the trial was over and they moved a petition under Section 10 CPC. There is no bonafide in the claim and therefore it is contended that the petition may be dismissed.
7. After having heard the learned counsel for the petitioner and the learned counsel appearing for the respondents, there seems to be considerable force in the submission made by the learned counsel for the respondents. The question as to whether power of attorney executed in favour of 14th respondent is valid or whether documents executed by him is valid etc. are matters to be considered in appeal. However, the fact remains that O.S.No.473/1994 proceeded to a considerable extent and a good part of evidence has been adduced. All along the petitioners before the court below participated in the trial and it is interesting to note that when the case was posted for defence evidence, learned counsel appearing for the petitioners reported no instructions. Another counsel was engaged who filed the present petition. The court therefore formed an opinion that there was no bonafides in the petition and it was only a tactic adopted to drag on the proceedings. The court below cannot be found fault with.
8. On going through the judgment in O.S.No.553/1991, it is not discernible as to what exactly the decision in that case. In one portion it is stated that power of attorney is valid and sale deeds are not set aside, in the decretal portion it is stated that sale deeds are set aside by the decree passed in the suit.
9. True, appeal is pending before this Court against the judgment and decree. If, as a matter of fact, the petitioner has bonafide believed that the issues involved in O.S.No.473/1994 and in the appeal pending before this Court are the same, they ought to have approached the court at the first instance and not at the fag end of the trial when considerable part of evidence has already been adduced. It is also significant to notice that when the case was posted for defence evidence, counsel for the petitioner reported no instructions. The court below was perfectly justified in coming to the conclusion that there is no basis for the petition and it is filed only with an intention to protract the disposal of the matter.
This Court finds no reason to take a different view. This petition is without merits and it is accordingly dismissed.
P.BHAVADASAN JUDGE smp