IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 21ST FEBRUARY 2008 / 2ND PHALGUNA 1929 WP(C).No. 33789 of 2007(V) --------------------------------------- AGAINST THE ORDER IN IA. NO. 1779 /2007 IN OS.467/1998 OF MUNSIFF COURT, PERUMBAVOOR. .................... PETITIONER: ------------------- JONACHAN,AGED 45 S/O.OUSEPH, OVUMGAMALY HOUSE, PULLUVAZHY KARA KUNNATHUNADU TALUK. BY ADV. SRI.V.RAJENDRAN PERUMBAVOOR, SRI.GEORGE VARGHESE KIZHAKKAMBALAM. RESPONDENTS: ------------------------ 1. VARKEY,AGED 70,S/O.PAILY, KALAMMALY HOUSE, RAYAMANGALAM KARA RAYAMANGALAM VILLAGE, KUNNATHUNADU TALUK, PIN - 683 542. 2. MARY,W/O.KURIAKOSE, KALAMMALY HOUSE, RAYAMANGALAM KARA RAYAMANGALAM VILLAGE, KUNNATHUNADU TALUK, PIN - 683 542. 3. BIJU,S/O.KURIAKOSE, KALAMMALY HOUSE, RAYAMANGALAM VILLAGE,RESIDING AT PADIKKAKUDY HOUSE, NEDUNGAPRA, VENGOOR VILLAGE, PIN : 683 542. W.P.(C). NO.33789/2007-V: 4. BAIJU (BINU)S/O.KURIAKOSE, KALAMMALY HOUSE,RAYAMANGALAM VILLAGE, RESIDING AT PADIKKAKUDYHOUSE NEDUNGAPRA, VENGOOR VILLAGE, PIN : 683542. R1. BY ADV. SRI.RAJESH VIJAYAN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/02/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.33789/2007-V: APPENDIX PETITIONER'S EXHIBITS : EXT.P.1: COPY OF THE PLAINT IN O.S. 467/98 OF MUNSIFF'S COURT, PERUMBAVOOR DTD. 16/09/98. EXT.P.2: COPY OF THE DECREE IN O.S. 467/98 OF MUNSIFF'S COURT, PERUMBAVOOR DTD. 17/01/05. EXT.P.3: COPY OF THE PLAINT IN O.S. 221/05 OF MUNSIFF'S COURT, PERUMBAVOOR DTD. 20/06/05. EXT.P.4: COPY OF THE JUDGMENT IN A.S. 275/06 DTD.24/02/07. EXT.P.5: COPY OF THE I.A. 1779/07 IN O.S. 467/98 DTD. 26/07/2007. EXT.P.6: COPY OF THE COUNTER FILED BY R.1. TO I.A. 1779/07 IN O.S. 467/98 DTD 10/09/07. EXT.P.7: COPY OF THE ORDER IN I.A. 1779/07 IN O.S. 467/98 DTD. 20/09/07. RESPONDENT'S EXHIBITS: NIL. //TRUE COPY// prv. M.N. KRISHNAN, J. = = = = = = = = = = = = = = W.P.C. NO. 33789 OF 2007 = = = = = = = = = = = = = = = Dated this the 21st day of February, 2008. J U D G M E N T This writ petition is filed against the order of the Munsiff, Perumbavoor whereby the learned Munsiff refused to grant permission for joint trial of O.S.467/98 with O.S.221/05. Few facts are necessary for appreciation of the matter. The petitioner in the application before the lower Court is the 4th defendant. The suit was filed by the original plaintiff in O.S.467/98 against three defendants and during the pendency of the case defendants 1 to 3 had transferred the property in favour of the 4th defendant without mentioning about the pendency of the suit and thereafter remained exparte which resulted in passing of an exparte decree by the Court. Thereafter the present petitioner namely the 4th defendant in the said suit moved an appeal before the appellate court and the appellate court set aside the judgment and decree and remanded the case back to the Court for fresh trial and disposal. W.P.C 33789 OF 2007 -:2:- 2. Meanwhile the present petitioner also instituted O.S.221/05 with a prayer of setting aside the decree in O.S.467/98 and for further relief of injunction and declaration. The appellate court also fixed the time frame as two months for disposal of the case. The Court below did not permit joint trial for various reasons. 3. It has to be stated that by virtue of setting aside the decree in O.S.467/98 the first prayer in O.S.221/05 has become infructuous. But the prayers 2 and 3 will have relevance and it needs adjudication. Everything depends upon the relief which the plaintiff in O.S.467/98 is entitled to in that suit. I am informed that the original plaintiff has also transferred the property. So virtually this is a case where the whole thing revolves upon the main prayer in O.S.467/98 with respect to the right of a way. Whether the plaintiff in the suit is entitled to get a declaration of quasi easement right is the subject matter which will have a direct reflection on the prayers 2 and 3 in the other suit O.S.221/05. Therefore I feel this is a fit case where the matter has to be jointly tried by the Court and therefore the order under challenge is set aside and the learned Munsiff is directed to W.P.C 33789 OF 2007 -:3:- try O.S.467/98 along with O.S.221/05. Since there has been subsequent transfers etc. and as the 4th defendant in O.S.467/98 is a new comer to the suit he may have to let in evidence and also supply materials to the Court for proper determination of the case. Under ordinary circumstances this Court will not interfere with the time limit fixed by the appellate court but for the reason that the 4th defendant has come on the party array at a belated stage by virtue of an appeal I feel the time limit has to be extended. So I direct the Court below to dispose of both suits as expeditiously as possible and not later than 30.6.2008. I make it clear the parties should produce particulars for putting forward their respective contentions and adduce evidence and supply of materials for a proper disposal of the case. The writ petition is disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/-