IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 30TH NOVEMBER 2011 / 9TH AGRAHAYANA 1933 OP(C).No. 212 of 2011(O) ----------------------------------- [OS.NO.2/2008 OF MUNSIFF'S COURT, PATHANAMTHITTA] .................... PETITIONERS: --------------------- 1. K.M.HUSSAIN @ RAJAN,S/O.MUHAMMED KANNI RAWTHER, KIZHAKKECHARUVIL HOUSE,THEKKUTHODU.P.O, KARIMANTHODU,KOZHENCHERRY TALUK,(REPRESENTED BY HIS POWER OF ATTORNEY HOLDER,SHEREEFA BEEVI,AGED 56 YEARS, W/O.MYTHEEN KUNJU,KIZHAKKECHARUVIL HOUSE, THEKKUTHODI.PO,KARIMANTHODU,KOZHENCHERRY TALUK. 2. AJITHA HUSSAIN,W/O HUSSAIN, KIZHAKKECHARUVIL HOUSE,THEKKUTHODU.P.O, KARIMANTHODU,KOZHENCHERRY TALUK, PATHANAMTHITA DISTRICT. 3. PATHUMMA BEEVI,W/O.LATE MUHAMMED KANNU RAWTHER, KIZHAKKECHARUVIL HOUSE,THEKKETHODU .P.O, KAIRMANTHODU,KOZHENCHERRY TALUK, PATHANAMTHITTA DISTRICT,PIN-689 699. BY ADVS. SRI.JACOB P.ALEX, SRI.JOSEPH P.ALEX. RESPONDENT: ---------------------- K.V.MATHEW @ MATHEW VARGHESE,THADATHIL HOUSE,THEKKETHODU.P.O,KARIMANTHODU, KOZHENCHERRY TALUK,PATHANAMTHITTA DISTRICT, PIN-689 699. BY THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 30/11/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.(C).NO.212/2011-O: APPENDIX PETITIONER'S EXHIBITS:- EXT.P.1: COPY OF THE PLAINT IN O.S. NO.2 OF 2008 ON THE FILE OF MUNSIFF'S COURT, PATHANAMTHITTA. EXT.P.2: COPY OF THE WRITTEN STATEMENT FILED BY THE P.1. IN O.S. NO. 2/2008 ON THE FILE OF MUNSIFF'S COURT, PATHANAMTHITTA. EXT.P.2.A: COPY OF THE WRITTEN STATEMENT FILED BY THE 2ND AND 3RD PETITIONERS IN O.S. NO.2/2008 ON THE FILE OF MUNSIFF'S COURT, PATHANAMTHITTA. EXT.P.3: COPY OF THE PLAINT IN O.S. NO. 513/2009 on the FILE OF MUNSIFF'S COURT, PATHANAMTHITTA. EXT.P.4: COPY OF THE WRITTEN STATEMENT FILED BY THE DEFENDANTS 1 TO 3 IN O.S. NO. 513/2009 ON THE FILE OF MUNSIFF'S COURT, PATHANAMTHITTA. EXT.P.5: COPY OF THE COMMISSION APPLICATION FILED BY THE PLAINTIFFS IN O.S. NO.513/2009 ON THE FILE OF MUNSIFF'S COURT, PATHANAMTHITTA. EXT.P.6: COPY OF THE I.A. NO. 2073/2010 (JOINT TRIAL APPLICATION) FILED BY THE PETITIONERS. EXT.P.7: COPY OF THE COUNTER AFFIDAVIT FILED BY THE RESPONDENT HEREIN IN I.A. NO. 2073/2010. EXT.P.8: COPY OF THE ORDER DTD. 15/09/2010 IN I.A. NO. 2073/2010. RESPONDENT'S EXHIBITS:- NIL. //TRUE COPY// P.S. TO JUDGE Prv. THOMAS P.JOSEPH, J. ==================================== O.P(C) No.212 of 2011 ==================================== Dated this the 30th day of November, 2011 J U D G M E N T Respondent is served but there is no response. 2. This Original petition is in challenge of Ext.P8, order dated 15.09.2010 on I.A. No.2073 of 2010 in O.S. No.2 of 2008 of the court of learned Munsiff, Pathanamthitta. Learned Munsiff has refused the request of petitioner for joint trial of that suit with O.S. No.513 of 2009 filed by petitioners 1 and 3 against respondent and others. 3. O.S. No.2 of 2008 filed by the respondent against petitioners is for a decree for prohibitory injunction to restrain petitioners from demolishing the pillars, gate, etc., in item No.1, demolishing the boundaries of item No.2 and widening plaint item No.3. Petitioners 1 and 3 filed O.S. No.513 of 2009 against the respondent and certain others for fixation of boundary, mandatory injunction and recovery of possession. Respondent and others filed Ext.P4, written statement. Petitioners filed Ext.P6, application for joint trial (that application was preferred in O.S. No.2 of 2008) which learned Munsiff has rejected as per Ext.P8, order stating O.P(C) No.212 of 2011 -: 2 :- that properties involved are different and that parties except three persons are also different. 4. It is contended by learned counsel that complete identity of properties or parties is not necessary for a joint trial. It is pointed out that even in Ext.P4, written statement filed by the respondent and others in O.S. No.513 of 2009 there is reference to the demand made by petitioners to the revenue authorities for measurement of properties and it is in the circumstances that petitioners 1 and 3 prayed for fixation of boundary in O.S. No.513 of 2009. It is also pointed out by learned counsel that it is with respect to the gate and pillars referred to in O.S. No.2 of 2008 and in respect of which respondent sought a decree for prohibitory injunction against petitioners that petitioners 1 and 3 filed O.S. No.513 of 2009 for a mandatory injunction. In the circumstances it was necessary that both the suits are tried jointly. Learned counsel invited my attention to the decision of the Supreme Court in Prem Lala Nahata v. Chandi Prasad (2007 [1] KLT 910 [SC]) and in particular the observations in paragraph 16 where the power of the court to consolidate suits is stated and it is pointed out by the learned counsel that the jurisdiction to consolidate arises when there are two or matters or causes pending in the O.P(C) No.212 of 2011 -: 3 :- court and it appears to the court that some common question of law or fact arises in both or all the suits or that the right to claim relief in the suits are in respect of or in respect of the same transaction or series of transactions or that for some other reasons it is desirable to direct consolidation of suits. It is pointed out by learned counsel that common question of fact is involved since in O.S. No.513 of 2009 petitioners 1 and 3 prayed for fixation of boundary and that has reference to the prayer for injunction made by the respondent in O.S. No.2 of 2008. It is also pointed out by the learned counsel that it is with respect to the mandatory injunction prayed regarding the pillars and gate in O.S. No.513 of 2009 that prohibitory injunction is prayed for by the respondent in O.S. No.2 of 2008. 5. It is seen from the order challenge that these aspects of the matter has not been considered by the learned Munsiff in Ext.P8, order. But I am unable to interfere with Ext.P8, order for the reason that in Ext.P6, application defendants in O.S. No.513 of 2009 other than the respondents herein not made parties. They are also entitled to get notice of the application for joint trial since the request is to order joint trial of O.S. No.513 of 2009 in which they are also parties with O.S. No.2 of 2008. In that O.P(C) No.212 of 2011 -: 4 :- situation it is appropriate that notice of Ext.P6, application was given to those defendants in O.S. No.513 of 2009 as well. In that view of the matter there is a procedural defect in the application and the matter has go back to the learned Munsiff for fresh decision. This Original Petition is allowed as under: Exhibit P8, order is set aside. Exhibit P6, application is remitted to the court below for fresh decision in the light of the decision referred above as also the facts and circumstances arising in both the cases after giving notice of the application to all the contesting parties in the two suits. THOMAS P. JOSEPH, JUDGE. vsv