IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 8TH OCTOBER 2009 / 16TH ASWINA 1931 WP(C).No. 24837 of 2009(O) -------------------------- TOP.285/2008 of DISTRICT COURT, THRISSUR OS.843/2007 of MUNSIFF COURT,CHAVAKKAD .................... PETITIONER(S): ---------------- ADV.T.R.VAIDYANANDHAN,S/O. KAIPPILLY MADATHIL RAMAKRISHNAN, GURUVAYOOR AMSOM & DESOM, CHAVAKKAD TALUK. BY ADV. SRI.DINESH MATHEW J.MURICKEN SRI.P.V.BALAKRISHNAN RESPONDENT(S): --------------- 1. ABOOBACKER HAJI, S/O.PUTHIYAVEETTIL KARIPPAYIL MOITHUNNY, PUNNA DESOM, MANATHALA AMSOM,CHAVAKKAD TALUK,THRISSUR DIST. 2. HAMSA, S/O. VALIYAPARAMBIL KUNHUMON, ANJOOR DESOM, VADAKKEKAD AMSOM, CHAVAKKAD TALUK, THRISSUR DISTRICT. 3. SAHASRANAMAN,S/O.KAIPPALLIMADATHIL RAMAKRISHNAN, GURUVAYOOR TALUK, THRISSUR DISTRICT.(T.R.SAHASRANAMAN, C/O.LVSSI,RUDRA COMPLEX, 4/1,4TH MAIN MALLESSWARAM, BANGALORE-560003) 4. RAMACHANDRAN, S/O.KAIPPALLIMADATHIL RAMAKRISHNAN, GURUVAYOOR TALUK, THRISSUR DISTRICT (FLAT:4 SUMARNA KUNJ MOHANT ROAD, VILLEPARLE, EAST MUMBAIR-400057) 5. MUTHIKRISHNAN, S/O.KAIPPALLIMADATHIL RAMAKRISHNAN, GURUVAYOOR TALUK, CHAVAKKAD TALUK, THRISSUR DISTRICT, NOW RESIDING AT 49/170 A,KAIPPILLI MADAM, BLOSSOM ROAD, ELAMAKKARA, KOCHI-26. 6. SUB REGISTRAR, ANDATHODE P.O., THRISSUR DISTRICT. WPC.24837/09 7. SUB REGISTRAR, KOTTAPPADI P.O. THRISSUR DISTRICT. 8. GOVERNMENT OF KERALA, REP.BY DISTRICT COLLECTOR, THRISSUR -3. ADV. SRI.P.SANTHOSH (PODUVAL) FOR R3,5 SMT.R.RAJITHA FOR R3,5 SRI.P.K.SAJEEV FOR R1 & 2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC.24837/09 APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PLAINT IN O.S.NO.843/07 ON THE FILE OF THE MUNSIFF COURT, CHAVAKKAD, DATED 15.11.2007. EXT.P2: COPY OF THE PLAINT IN O.S.NO.938/08 ON THE FILE OF SUB COURT, THRISSUR, DATED 2.7.2008. EXT.P3: COPY OF THE TOP.NO.285/08 ON THE FILE OF THE DISTRICT COURT, THRISSUR DATED 30.7.2008. EXT.P4: COPY OF THE OBJECTION FILED BY THE PETITIONER IN TOP.285/08 DATED 2.1.2009. EXT.P5: COPY OF THE ORDER IN TOP.NO.285/08 PASSED BY THE DISTRICT COURT, THRISSUR, DATED 5.8.2009. /TRUE COPY/ P.A. TO JUDGE S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.24837 OF 2009 (O) ----------------------------------- Dated this the 8th day of October, 2009 J U D G M E N T The writ petition is filed seeking mainly the following relief: i. to set aside the order passed by the Honourable District Court, Thrissur in TOP.No.285 of 2008 (Ext.P5). 2. Petitioner is the plaintiff in O.S.No.843 of 2007 on the file of the Munsiff Court, Chavakkad. Suit has been filed for a decree of perpetual prohibitory injunction to restrain the defendants 1 to 3/respondents 3 to 5 in the writ petition from alienating the properties to strangers, without the knowledge and consent of the petitioner and others, who are parties to a WPC.24837/09 2 registered partition deed, and defendants 4 to 6/respondents 6 to 8 in the writ petition, from registering of any such document. Pending suit, the respondents 1 and 2 filed a suit for specific performance of an agreement of sale against respondents 3 and 4, as O.S.No.938 of 2008 before the Sub Court, Thrissur. Respondents 1 and 2 also moved an application before the District Court, Thrissur, seeking for transfer of the suit filed by the petitioner from Munsiff Court, Chavakkad to the Ist Additional Sub Court, Thrissur as T.O.P.No.285 of 2008, for transfer of O.S.No.843 of 2007 from Munsiff Court, Chavakkad to the Sub Court, Thrissur, where their suit O.S.No.938 of 2008 is pending for adjudication. The learned District Judge, after hearing both sides, allowed that application for transfer ordering transfer of O.S.No.843 of 2007 from the Munsiff Court to the Sub Court, Thrissur. Ext.P5 is that order. Propriety and correctness of Ext.P5 order is challenged in the writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 3. I heard the counsel on both sides. It appears the WPC.24837/09 3 request for transfer was entertained by the learned District Judge, and it was allowed vide Ext.P5 order, for the reason that in both the suits, the subject matter related to the same property. That being so, a conclusion was formed that if both suits are tried by the same court, it would be convenient to the parties and also it would advance the interest of justice. I am afraid the conclusion so formed was taken without noticing that the suits cannot be jointly tried. The claim in a suit for specific performance of an agreement of sale relate to the enforceability of the contract, and even if additional relief of possession is claimed in such suit, interest over the immovable property does not as such arise for consideration. So far as the suit for perpetual prohibitory injunction of the petitioner, his legal rights claiming interest in the immovable property is involved. Subject matter, the immovable property scheduled in both the suits, is common, cannot be a criteria for transfer without examining on what legal right the claims are raised in the suits. Of course, the involvement of common question of law and facts is not the only ground authorising the transfer of suits under Section 24 of the CPC. However, where the litigating parties in the suits are not the same and there is no WPC.24837/09 4 possibility for joint trial of such suits as the character of such suits and reliefs claimed are different from one another, transfer of one suit to another court where the other suit is pending for the reason it will suit the convenience of the parties is not proper and correct. No effective or useful purpose will be served by transfer of the case O.S.No.843 of 2007 to the Sub Court, Thrissur, where the suit for specific performance is pending consideration. That being so, the suit O.S.No.843 of 2007, whatever be its merits, has to be tried and disposed of by the court, which has jurisdiction to entertain and try that suit. Ext.P5 order is set aside with direction to the concerned courts where the respective suits have been instituted, to try and dispose the respective suits, in accordance with law. Writ petition is disposed as indicated above. S.S.SATHEESACHANDRAN JUDGE prp