IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 26TH JULY 2010 / 4TH SRAVANA 1932 WP(C).No. 17092 of 2010(O) -------------------------- TOP.268/2008 of DISTRICT COURT, THRISSUR .................... PETITIONER: --------------- P.G.GEETHA BAI,AGED 55, W/O.RAMACHANDRAN, PANIKANPARAMBIL HOUSE, KARALAM, THRISSUR DISTRICT. BY ADV. SRI.G.SREEKUMAR (CHELUR) SMT.PREETHY KARUNAKARAN SRI.K.RAVI (PARIYARATH) RESPONDENTS: --------------- 1. M.N.SATHIDEVI,D/O.NARAYANAN, MATTUMMEL HOUSE,RAMANILAYAM, THAIKOODAM, VYTTILA, ERNAKULAM. 2. M.N.VIJAYAN,S/O.NARAYANAN, MATTUMMEL HOUSE,CHUTTUPADUKARAYIL, ERNAKULAM. 3. JAYARAM @ CHOTTU,S/O.VASUDEVAN, OTTALI HOUSE,II NO AGRA-B-18,KOORKANCHERY, THRISSUR DISTRICT. ADV. SRI.RANJITH XAVIER FOR R3 SRI.N.P.SAMUEL FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 17092 of 2010 APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1 : T O P NO.268 OF 2008 BEFORE the DISTRICT COURT, THRISSUR DTD. 16.08.2008 EXHIBIT P2 : ORDER PASSED IN T O P NO.268 OF 2008 DTD. 12.01.2010 ON THE FILE OF THE DISTRICT COURT, THRISSUR RESPONDENTS' EXHIBITS: EXHIBIT R3(a): PLAINT IN O.S.No.612 OF 2008 BEFORE SUB COURT, THRISSUR EXHIBIT R3(b): PLAINT IN O.S.No.1881 OF 2008 BEFORE MUNSIFF COURT, THRISSUR True Copy P. A to Judge THOMAS P JOSEPH, J. ---------------------------------------- W.P.C.No.17092 of 2010 --------------------------------------- Dated this 26th day of July, 2010 JUDGMENT This writ petition is in challenge of Ext.P2, order in T.O.P.No.268 of 2008 of the court of learned District Judge, Thrissur. That was a petition filed by petitioner seeking transfer of O.S.No.1881 of 2008 from the court of learned Additional Munsiff-II, Thrissur to the court of learned Additional Sub Judge- I, Thrissur for joint trial with O.S.No.612 of 2008 pending in the latter court. Learned District Judge observed that the two cases cannot be tried jointly and consequently dismissed the petition. It is contended by learned counsel for petitioner that both the cases are required to be jointly tried to avoid divergent findings on the same question of fact and that when it appeared that some common question of fact and/or law is involved in the cases, it is within the power of court to consolidate the suits and jointly disposed of the same for the sake of convenience and to avoid divergent finding on common questions of fact and/or law. Learned counsel for petitioner had placed reliance on the decision of this court in Prem Lala Nathala Vs. Chandi Prasad (2007(1) KLT 910). Learned counsel for respondents contend W.P.C.No.17092 of 2010 : 2 : that having regard to the contentions raised by the parties in the respective suits and considering nature of the suit, joint trial is not possible in which case, consolidation of the suits in the case is not warranted. O.S.No.612 of 2008 is a suit filed by petitioner claiming that on behalf of her sons who are abroad and who got title and possession over the property as legatees under registered Will, she is managing the said property and sought decree for prohibitory injunction against respondent Nos.1 and 2 trespassing into the said property. O.S.No.1881 of 2008 is filed by respondent No.3 against petitioner under Section 6 of the Specific Relief Act (for short, “the Act”) claiming that respondent No.3 was dispossessed by petitioner within six months before institution of that suit. Petitioner wanted O.S.No.1881 of 2008 pending in the court learned Additional Munsiff-II, Thrissur to be transferred to the court of learned Additional Sub Judge-I, Thrissur. Learned District Judge has disallowed the prayer in the nature of the suits and holding that no joint trial is permissible. Learned counsel for respondents contend that in O.S.No.612 of 2008 issue regarding due execution and attestation of the Will is involved with which respondent No.3 who filed O.S.No.1881 of 2008 is not at all concerned. Learned counsel appearing for W.P.C.No.17092 of 2010 : 3 : respondent No.3 invited my attention to Section 6(4) of the Act. I am not going into the question whether these suits are to be tried jointly in view of the order which I propose to pass and since that is a matter which the transferee court has to decide. If some common question of fact and/or law is involved, it is well within the power of the court to order joint trial of the suits. It is for the transferee court to decide whether such situation arose in the cases on hand. 2. Now what is required is whether the case pending in the court of learned Additional Munsiff-II, Thrissur is to be transferred to the court of learned Additional Sub Judge-I, Thrissur. It is not disputed that the suits are in respect of the same property and in both the cases petitioner claims to be in possession of the said property. In these circumstances it is only just and proper that the suits are tried and disposed of by the same court. I do not find reason to refuse the request of transfer. Resultantly this writ petition is allowed and O.S.No.1881 of 2008 pending in the court of learned Additional Munsiff-II, Thrissur is withdrawn from that court and made over to the court of learned Additional Sub Judge-I, Thrissur where O.S.No.612 of 2008 is pending. The transferor court shall transmit records of W.P.C.No.17092 of 2010 : 4 : the case to the transferee court with due intimation to counsel on both sides as to date of appearance in the transferee court. The question of joint trial shall be decided by the transferee court after hearing counsel on both sides untrammelled by any observation contained in this judgment or the order of learned District Judge. (THOMAS P JOSEPH, JUDGE) Sbna/-