IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 7TH APRIL 2009 / 17TH CHAITHRA 1931 Tr.P(C).No. 105 of 2009() ------------------------- OS 250/2009 AND OS.363/2009 of MUNSIFF COURT,ERNAKULAM .................... PETITIONERS/DEFENDANTS 1 & 2 ------------------------------------------------ 1. THE KERALA HIGH COURT ADVOCATES' ASSOCIATION,E.R.NO.931/2004, REP.BY ITS SECRETARY,HIGH COURT BUILDINGS, ERNAKULAM,KOCHI-31. 2. THE KERALA HIGH COURT ADVOCATES' ASSOCIATION,CHAMBER SOCIETY, REP.BY ITS SECRETARY,E.R.NO.383/08, HIGH COURT BUILDINGS,ERNAKULAM,KOCHI-31. BY ADV. SRI.G.SHRIKUMAR RESPONDENT(S): RESPONDENTS/PLAINTIFFS ------------------------------------- 1. THOMAS ANTONY,ADVOCATE, S/O.LATE ANTONY, RESIDING AT KALLANPALLY HOUSE, VENNALA VILLAGE P.O., KANAYANNUR TALUK,ERNAKULAM. 2. JOHNSON P.JOHN,ADVOCATE, S/O.JOHN,VADAKKEL BUILDING, MAHAKAVI G.ROAD,KOCHI-11. RESIDING AT 22/414A, THRIKKAKARA NORTH VILLAGE. ADV. SRI.K.V.SADANANDA PRABHU FOR R2 SRI.P.CHANDRASEKHAR FOR R1 THIS TRANSFER PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/04/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: TR.P.C.NO.105/2009 ORDER IN IA NO.904/09 IN TR.P.C.NO.105/2009 DISMISSED 7.4.2009 SD/- K.T.SANKARAN, JUDGE /TRUE COPY/ P.A. TO JUDGE K.T.SANKARAN, J. ----------------------------------- Tr.P.(C).No.105 of 2009 ----------------------------------- Dated this the 7th day of April, 2009 ORDER This Transfer Petition is filed by the Kerala High Court Advocates' Association and by the Kerala High Court Advocates' Association Chamber Society praying to withdraw O.S.No.250 of 2009 and 363 of 2009 pending before the II Additional Munsiff's Court, Ernakulam and the Principal Munsiff's Court, Ernakulam respectively for trial and disposal by this court along with two Writ Petitions which are pending before this Court. 2. O.S.No.250 of 2009 is filed by Advocate Thomas Antony (first respondent) who is a member of the first petitioner association for the following reliefs: “A. To pass a judgment and decree, declaring that the construction work of the chamber cum commercial complex on the area of 1 acre 10.69 cents of government puramboke land in survey No.1903 in Ernakulam Village, Kanayannur Taluk by the defendant is illegal and without lawful authority. B. To pass a judgment and decree, declaring that the defendant Association, its assets and any of Tr.PC No.105/2009 2 its individual members will not be liable for any future claims for compensation/damages, restitution which may arise out of the construction work of the chamber cum commercial complex on the area of 1 acre 10.69 cents of government puramboke land in survey No.1903 in Ernakulam Village, Kanayannur Taluk, by the defendant; and any such liability will be on the person and property of the office bearers of the defendant who entered/enters into agreements with the work contractors, banks and other creditors. C. to pass an order of injunction restraining the defendant from spending any amount on the illegal construction work presently being carried out on the area of 1 acre 10.69 cents of government puramboke land in survey No.1903 in Ernakulam Village, Kanayannur Taluk. D. To grant such other and further reliefs as are just and essential in the circumstances of the case with cost of this plaintiff.” 3. O.S.No.363 of 2009 is filed by Advocate Johnson P.John, second respondent, who is another member of the first petitioner association claiming the following reliefs: “a) Declaring that the first defendant's members are not bound or otherwise liable for any illegal construction activities going on in the property aforesaid and in the event of the plaintiff or any body else among the members of the first defendant association suffering loss on account of the same, the office bearers of the second defendant presently in office or those come to Tr.PC No.105/2009 3 the said office in future who connive the illegal acts aforesaid, would be personally responsible and liable to make good the loss sustained by the members of the first defendant including the plaintiff. (b) declaring that the action of the second defendant in removing the plaintiff from the list of allottees of chambers is illegal and void ab initio. (c) issuing permanent prohibitory injunction restraining the third defendant to meddle with the affairs of the first defendant either in the matter of construction of the chambers or in the matter of allotment of the chambers including the fixing of norms for the same pursuant to any right, title or interest that may vest with the first defendant in presenti or in future over the scheduled land. (d) allowing the plaintiff to realise the cost of the suit from the defendants and (e) granting such other reliefs and this court may deem fit and proper in the circumstances of the case.” 4. The Writ Petition No.38072 of 2008 was filed by the Kerala High Court Advocates' Association challenging the order passed by the Cochin Corporation directing the stoppage of the construction of the chamber complex for the Advocates. That Writ Petition is pending. O.S.No.85 of 2009 was filed by some Tr.PC No.105/2009 4 persons claiming to be interested in the subject matter and challenging the action of the Kerala High Court Advocates Association in continuing with the construction of the chamber complex. That suit was filed under Section 91 of the Code of Civil Procedure. Leave to institute the suit was sought. The trial court granted leave. The Kerala High Court Advocates' Association has challenged the order granting leave in W.P.C.No.4795 of 2009 and that Writ Petition is also pending. It is in this background that the petitioners have prayed for disposal of the suits by the High Court itself. 5. It is submitted by the petitioners that if the suits are tried by different Munsiffs' Courts, it is likely that conflicting decisions may arise. Documentary and oral evidence would be common in these two suits. To suit the general convenience of the parties and to avoid conflicting decisions, it is just and necessary that the aforesaid suits are tried by the same court. 6. Now the question is which court should try the suit. It is submitted that in view of the fact that the dispute is between the Kerala High Court Advocates' Association and two of its Tr.PC No.105/2009 5 members and also in view of the fact that O.S.No.363 of 2009 is filed under Order I Rule 8 of C.P.C. in which other persons who are interested in the case are likely to come on record, it would be ideal if the cases are tried by the High Court itself along with the aforesaid two Writ Petitions. It is also pointed out that in the course of trial, some of the proceedings taken by the High Court also may arise for consideration. 7. Advocate Sri.Chandrasekharan, Advocate, appearing for the first respondent and Advocate Sri.Sadananda Prabhu, appearing for the second respondent submitted that their parties have no objection in the cases being transferred to any court. Their only anxiety is that an early disposal of the suits is necessary and that the stay granted in this Transfer Petition would cause prejudice to the plaintiffs. 8. Taking into account the facts and circumstances of the case, the gravity of the situation, the nature of the disputes involved in the case and also in view of the fact that the Kerala High Court Advocates' Association on the one hand and some of the members of the Association on the other are involved in the Tr.PC No.105/2009 6 dispute, I am of the view that it would be ideal if the suits are tried by the District Court. 9. I am not inclined to allow the Transfer Petition as prayed for and to transfer the suits to the High Court. But, at the same time, trial of the suits by the District Court would be ideal in the facts and circumstances of the case. Accordingly, the Transfer Petition is allowed in part. O.S.Nos.250 of 2009 and 363 of 2009 pending before the Court of the II Additional Munsiff of Ernakulam and the Court of the Principal Munsiff of Ernakulam respectively are transferred to the court of the District Judge, Ernakulam, for joint trial and disposal. The registry shall communicate copy of the order to the Munsiffs' Courts concerned and also to the District Court, Ernakulam. K.T.SANKARAN, JUDGE csl