Kerala High Court
Smt.Indira Devi vs K.M.Joseph on 30 November, 2009
Author: S.S.Satheesachandran
Bench: S.S.Satheesachandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 33913 of 2009(O)
1. SMT.INDIRA DEVI, D/O.P.G.GOVINDAN,
... Petitioner
Vs
1. K.M.JOSEPH, S/O.MICHAEL, AGED ABOUT
... Respondent
2. ANIL KUMAR, S/O.CHIDAMBARAN, AGED
3. ASOK, S/O.CHIDAMBARAN, AGED ABOUT 38
4. TOMY GEORGE, AGED ABOUT 28 YEARS,
5. CHIDAMBARAN, S/O.VELU, AGED ABOUT 62
6. VENU, S/O.KALALAYAM NAYAR, AGED ABOUT
7. GODWIN, S/O.VINCENT, AGED ABOUT 35
8. SANJAYAN, REAL ESTATE BROCKER,
For Petitioner :SRI.MILLU DANDAPANI
For Respondent :SRI.BABU KARUKAPADATH
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :30/11/2009
O R D E R
S.S.SATHEESACHANDRAN, J.
-----------------------------------
W.P.(C).No.33913 of 2009 - O
---------------------------------
Dated this the 30th day of November, 2009
J U D G M E N T
Petitioner is the plaintiff in O.S.No.526 of 2007 on the file of the Additional Sub Court, North Paravur. Suit is one for injunction, both prohibitory and mandatory, and for damages. Ext.P1 is the copy of the plaint in the above suit. The respondents 1 to 7 are the defendants in the above suit and eighth respondent is the first defendant in another suit filed by the respondents 2 & 5 as plaintiffs. Respondents 2 & 5 have filed a suit as O.S.No.615 of 2007 before the Munsiff Court, North Paravur for a decree of injunction wherein the second defendant is the petitioner herein. Ext.P3 is the copy of the plaint in that suit. The dispute involved in both the suits is in respect of a pathway, which according to the plaintiffs in Ext.P3 suit is a public way. In the alternative they have also set up a right by prescriptive easement over that way. Petitioner, who is the plaintiff in Ext.P1 suit, disputed even the existence of such a way through her property. Ext.P1 suit filed by the petitioner is pending before the Sub Court, North Paravur. Suit of the petitioner/plaintiff (P1) was filed the next day after the W.P.(C).No.33913 of 2009 - O 2 institution of Ext.P3 suit by the respondents 2 and 5, and on an application moved by those respondents P1 suit was stayed by the learned Sub Judge under Section 10 of the Code of Civil Procedure vide Ext.P5 order. Petitioner has moved an application under Section 24 of the Code of Civil Procedure for transfer of Ext.P3 suit for joint trial with Ext.P1 suit to the Additional Sub Court, North Paravur. That application was opposed to by the respondents and, after hearing both sides the learned District Judge dismissed that application vide Ext.P7 order dated 1.4.2009. Petitioner had also moved an application with a petition to condone delay for reviewing Ext.P5 order passed in P1 suit staying its trial under Section 10 of the Code of Civil Procedure. That application was dismissed by Ext.P8 order. Propriety and correctness of Exts.P5 and P8 orders in respect of the order passed under Section 10 of the Code of Civil Procedure by the learned Sub Judge and Ext.P7 order passed by the learned District Judge declining the transfer requested for, are challenged in the writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India.
2. I heard the counsel on both sides.
3. It has been brought to my notice that Ext.P3 suit filed by W.P.(C).No.33913 of 2009 - O 3 the respondents 2 and 5 as plaintiffs is scheduled in the special list for trial tomorrow. Learned counsel for the respondents would submit that in both suits the issues are identical and resolution of the dispute by adjudication in one suit would give a quietus to the controversy in the other suit as well. So much so, present petition long after the dismissal of Ext.P7 order passed by the learned District Judge declining the transfer that too at a stage when Ext.P3 suit came in the special list for trial, does not warrant any consideration, is the submission of the counsel. On the other hand, learned counsel for the petitioner would submit that in P1 suit additional reliefs by way of damages and also mandatory injunction are also claimed even disputing the very existence of the pathway which is claimed by the plaintiffs in P3 suit and if a joint trial of the two suits is not permitted then any adverse decision in P3 suit is open to challenge only by way of an appeal and till final adjudication is made in P1 suit, petitioner/plaintiff in P1 suit will not be able to vindicate the rights canvassed in her lis since the issues involved in both the suits relate to the existence or nonexistence of a pathway. It is ideal and more so in the expediency of justice that both suits should be tried together by the same court is the submission of the counsel.
W.P.(C).No.33913 of 2009 - O 4
4. Having regard to the submissions made and taking note of the facts and circumstances presented in the backdrop that the suit of the plaintiff was filed the very next day after institution of the suit of the respondents 2 and 5, I find a joint trial of the two suits is necessary to advance the ends of justice. The dismissal of the transfer petition by the learned District Judge and also the order passed by the learned Sub Judge staying the proceedings of the suit under Section 10 of the Code of Civil Procedure and dismissal of the review petition of that order cannot stand in the way of ordering of joint trial of the two suits where it is seen that disputes to be considered are identical in both the suits. The fact that one of the suit has come up in the special list for trial cannot also be given unmerited consideration where the facts presented in both the cases demonstrate that identical issues arise for adjudication. True, the delay in moving an application by the petitioner also require to be taken note of while showing indulgence in her favour. There will be a direction that the plaintiff shall pay a sum of Rs.2,000/- as cost to the respondents 2 and 5 for the belated challenge canvassed against Exts.P5, P7 & P8 orders by way of this writ petition. Learned Munsiff shall remove Ext.P3 suit from the list and transmit the case to Additional Sub Court, North Paravur where Ext.P1 suit is W.P.(C).No.33913 of 2009 - O 5 pending. Exts.P5 & P7 orders passed staying the trial of P1 suit under Section 10 of the Code of Civil Procedure shall stand vacated. P8 order is also set aside. Learned Sub Judge shall give top priority for the trial of the suits and complete the pretrial steps in P3 suit within a period of three months from the date of receipt of a copy of this judgment, and then dispose it within another six months. Learned counsel for the petitioner submits that the cost ordered shall be paid to the counsel appearing for respondents 2 and 5 before this Court, and it is recorded. Transfer of P3 suit to the Additional Sub Court, North Paravur is ordered with a direction to dispose the suits as indicated above.
Writ petition disposed of as above.
S.S.SATHEESACHANDRAN, JUDGE.
bkn/-