IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 21ST DECEMBER 2011 / 30TH AGRAHAYANA 1933 OP(C).NO. 4228 OF 2011(O) ---------------------------------------- AGAINST THE ORDER IN OS 52/2011 & OS.24/2011 OF MUNSIFF'S COURT, NEDUMANGAD PETITIONER: ------------------- SREEDHARAN PILLAI, BEENA BHAVAN, CHAVARODU, THEMBAMOODU, PULLAMPARA VILLAGE, NEDUMANGAD TALUK, THIRUVANANTHAPURAM DISTRICT. BY ADV. SRI.M.R.RAJESH SRI.K.M.ALEXANDER RESPONDENT(S): ------------------------- 1. JUAMAILA BEEVI, C.R. HOUSE, THEMBAMOODU, MANIKKAL MURI, PULLAMPARA VILLAGE, NEDUMANGAD TALUK, THIRUVANANTHAPURAM DISTRICT 695 001. 2. RAHIYA, DO. DO. DO. DO. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 21/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P(C) NO.4228 OF 2011 APPENDIX PETITIONER(S)' EXHIBITS: EXHIBIT P1 TRUE COPY OF THE PLAIN IN O.S. NO.24 OF 2011 OF THE MUNSIFF'S COURT, NEDUMANGAD. EXHIBIT P2 TRUE COPY OF THE WRITTEN STATEMENT IN IN O.S. NO.24 OF 2011 OF THE MUNSIFF'S COURT, NEDUMANGAD. EXHIBIT P3 TRUE COPY OF THE PLAINT IN O.S. NO.52 OF 2011 OF THE MUNSIFF'S COURT, NEDUMANGAD. EXHIBIT P4 TRUE COPY OF I.A. NO.9846 OF 2011 IN O.S. NO.24 OF 2011 OF THE MUNSIFF'S COURT, NEDUMANGAD. RESPONDENT(S)' EXHIBITS: NIL TRUE COPY P.S. TO JUDGE THOMAS P.JOSEPH, J. ==================================== O.P(C) No.4228 of 2011 ==================================== Dated this the 21st day of December, 2011 J U D G M E N T Petitioner is the first defendant in O.S. No.24 of 2011 and plaintiff in O.S. No.52 of 2011 of the court of learned Munsiff, Nedumangad, as the learned counsel submits, in both the cases issue concerns claim made by petitioner and others for right of access through the property of respondents. In O.S. No.24 of 2011 respondents wanted a decree for prohibitory injunction against petitioner and defendants 2 to 4 trespassing into the suit property while in O.S. No.52 of 2011 petitioner and defendants 2 and 3 prayed for a decree for a declaration of right of easement and consequential reliefs. According to the learned counsel since common questions of fact and law are involved in the suits I.A. No.9374 of 2011 in O.S. No.52 of 2011 was filed for joint trial. But that application is posted on 02.01.2012 for orders. In the meantime O.S. No.24 of 2011 was posted for trial on 15.12.2011 and as there was no sitting, the case was adjourned to 17.12.2011. Petitioner filed I.A. No.9846 of 2011 to remove the case from the list and the learned Munsiff was appraised of O.P(C) No.4228 of 2011 -: 2 :- pendency of O.S. No.52 of 2011 and I.A. No.9374 of 2011 filed in that case for joint trial which was posted on 02.01.2012. Learned Munsiff took O.S. No.24 of 2011 for trial and since counsel and petitioner and other defendants were absent they were set ex parte and evidence of respondents was recorded. Now the case is posted for judgment on 23.12.2011. 2. Since petitioner has only been set ex parte (as the learned counsel submitted) and no ex parte decree has been passed in O.S. No.24 of 2011 it is open to the petitioner and others to move appropriate application before learned Munsiff to set aside the ex parte order against him/them and reopen the case for evidence. In that view of the matter there is no reason why this Court should interfere at this stage. 3. Learned counsel pointed out that having regard to the contentions involved in the two suits joint trial may be ordered to avoid divergent and conflicting findings. It is also submitted that I.A. No.9374 of 2011 filed in O.S. No.52 of 2011 is posted on 02.01.2012. Certainly the above are matters which learned Munsiff has to consider while considering the request of petitioner and others, if made, to set aside the ex parte order and if any such application is preferred learned Munsiff shall consider all O.P(C) No.4228 of 2011 -: 3 :- relevant aspects of the matter and pass appropriate orders on the application before pronouncing judgment in O.S. No.24 of 2011 bearing in mind the nature of reliefs prayed in the suits and possibility if any, of divergent findings. With the above observation and direction this Original Petition is disposed of without prejudice to the right of petitioner and others to move appropriate application before learned Munsiff in O.S. No.24 of 2011 to set aside the ex parte order against him/them. THOMAS P. JOSEPH, JUDGE. vsv