IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 28TH JULY 2009 / 6TH SRAVANA 1931 Tr.P(C).No. 172 of 2009() ---------------------------------- OS.923/2007 of II ADDL.MUNSIFF COURT,THIRUVANANTHAPURAM .................... PETITIONERS -------------------- 1. G.ARUNKUMAR,'SARANYA',CHANTHANAVILA, ENIKKARA,KARAKULAM.PO,THIRUVANANTHAPURAM. 2. G.AJITH KUMAR,'SARANYA',CHANTHANVILA, ENIKKARA,KARAKULAM.PO,THIRUVANANTHAPURAM. 3. SREEDHARAN NAIR,PADINJAREKUNNUMPURATHU VEEDU,SASTHA NAGAR,THIRUMALA.PO, THIRUVANANTHAPURAM. BY ADV. MR.C.M.STEPHEN RESPONDENT(S): ------------------------ ALEXANDER VARGHESE,T.C.29/1235, NANDAVANAM ROAD,VIKAS BHAVAN.P.O,PALAYAM, THIRUVANANTHAPURAM. BY THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28/07/2009, ALONG WITH TPC NO. 173 OF 2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. S.S.SATHEESACHANDRAN, J. ------------------------------- Tr.P.(C).NOS.172 & 173 OF 2009 () ----------------------------------- Dated this the 28th day of July, 2009 O R D E R These transfer petitions have been filed under Section 24 of the Code of Civil Procedure. In Tr.P.(C).No.172/2009, the petitioner seeks the transfer of O.S.No.923/2007 from the file of the II Additional Munsiff Court, Thiruvananthapuram to the II Additional Sub Court, Thiruvananthapuram so as to have a joint trial with O.S.No.330/2007 pending before that court. In Tr.P.(C). No.173/2009, the common petitioner seeks transfer of O.S.No.1024/2006, which at the time of the filing of the petition was pending before the III Additional Munsiff Court, Thiruvananthapuram but later transferred to Principal Munsiff Court, Thiruvananthapuram on administrative reasons, to the II Additional Sub Court, Thiruvananthapuram to have a joint trial of the case with O.S.No.330/2007 pending before that court. TPC.172 & 173/09 2 2. Govt.Pleader has taken notice for the 1st respondent, and for the 2nd respondent, its Standing Counsel appeared. So far as the respondent in Tr.P.(C).No.172/2009, the petitioner has produced a memo evidencing service of notice on the counsel appearing for him in the court below. I am satisfied that proper service has been effected, and service on that respondent is declared sufficient. 3. I heard the counsel on both sides. The common petitioner has filed a suit as O.S.No.1024/2006 for a decree of prohibitory injunction, in which, the respondents are the Special Tahasildar (Land Acquisition) and Thiruvananthapuram Development Authority (TRIDA), Vazhuthacaud. The defendants in that suit are taking hasty steps without authority to demolish a shop under his occupation situated beside Nandavanam town in Vanchiyoor Village, was the case pleaded to seek the relief of injunction in the above suit. It is the case of the petitioner that after an interim order of injunction was passed in that suit, flouting that order, the defendants demolished the building with other TPC.172 & 173/09 3 structures close by to that building. So, in effect, the relief claimed in the suit has become infructuous. Further more, I notice that the 1st defendant in the suit is a government officer and the State having not been impleaded as a co-defendant as mandated under Order XXVII Rule 5 of CPC, the maintainability of the suit may also arise for consideration before the court. The transfer of that case with another case for joint trial, whatever be the identity of the issues involved, in the above circumstances, may be a futile exercise. In that view of the matter, I find the transfer requested in Tr.P.(C). No.173/2009 to transfer O.S.No.1024/2006 presently on the file of the Principal Munsiff Court, Thiruvananthapuram to the II Additional Sub Court, Thiruvananthapuram cannot be entertained. Then with respect to the other transfer petition Tr.P.(C).No.172/2009 relating to the transfer of O.S.No.923/2007 which is filed by the respondent herein as plaintiff after the demolition of the structures by the TRIDA, seeking a decree of perpetual prohibitory injunction to restrain the defendants in that suit, the petitioner and two others, from trespassing upon the site where the structures had been demolished and putting up any new construction, I TPC.172 & 173/09 4 find the joint trial of that case with a suit for damages preferred by the petitioners as plaintiffs is not at all necessary. The cause of action in the two suits is not identical and the issues to be considered in the suits are also different from one another, and so much so, whatever be the identity of the parties involved in the suit that alone is not sufficient to transfer that case to the Sub court where the suit filed by the petitioners to claim damages contending that the action of the TRIDA was unauthorised, in which I find the plaintiff in O.S.No.923/2007 has not been made a defendant, is not warranted and also cannot be allowed. Suit for claiming damages has to be separately tried, and not in association with the other two suits in respect of which transfers are sought by these petitioners. Both the transfer petitions are dismissed. S.S.SATHEESACHANDRAN JUDGE prp TPC.172 & 173/09 5