IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 2ND NOVEMBER 2010 / 11TH KARTHIKA 1932 OP(C).No. 417 of 2010(O) ------------------------ TOP.323/2010 of DISTRICT COURT, THRISSUR .................... PETITIONER: ------------------------------ JAISON J.MANJALY, PROPRIETOR M/S.MANJALY SONS, CONTRACTORS AND ENGINEERS, VENDOR, ALAGAPPANAGAR, MUKUNDAPURAM, THRISSUR. BY ADV. SRI.K.A.SREEJITH RESPONDENT: --------------- NEPTUNE READYMIX CONCRETE (P) LTD., REPRESENTED BY ITS MANAGING DIRECTOR ALEX THOMAS, PERINGADUR, MUNDUR, THALAPPILLY, THRISSUR. ADV. SRI JOHN JOSEPH VETTIKAD FOR R THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 02/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C).No. 417 of 2010 APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1 : PLAINT IN O.S.615/08 IN the FILES OF PRINCIPAL SUB COURT, THRISSUR EXHIBIT P2 : WRITTEN STATEMENT AND COUNTER CLAIM N O.S.615/08 IN the FILES OF PRINCIPAL SUB COURT, THRISSUR EXHIBIT P3 : WRITTEN STATEMENT TO COUNTER CLAIM EXHIBIT P4 : NOTICE ISSUED BY NEHRU COLLEGE AUTHORITIES ON THE BASIS OF COMMISSION REPORT FILED BY PRO ANADAVALLY EXHIBIT P5 : COMMISSION REPORT FILED BY ASSISTANT EXECUTIVE ENGINEER JAMES EXHIBIT P6 : PLAINT IN O.S.865/10 IN THE FILES OF 1ST ADDITIONAL SUB COURT, THRISSUR EXHIBIT P7 : TOP NO.323/10 IN the FILES OF DISTRICT COURT, THRISSUR EXHIBIT P8 : ORDER IN TOP NO.323/10 IN the FILES OF DISTRICT COURT, THRISSUR RESPONDENTS' EXHIBITS: NIL True Copy THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.417 of 2010 --------------------------------------- Dated this 02nd day of November, 2010 JUDGMENT This petition is in challenge of Ext.P8, order passed by the learned District Judge, Thrissur on October 8, 2010 in T.O.P.No.323 of 2010 for consolidation of two suits pending in the Principal and First Additional Sub Courts, Thrissur. Petitioner is plaintiff in both the suits. In O.S.No.615 of 2008 filed in the court of learned Principal Sub Judge, petitioner prayed for a declaration that respondent is not entitled to get any amount for the articles supplied to him in connection with construction of a building. In that case, respondent filed written statement and a counter claim for recovery of amount allegedly due from petitioner for articles supplied to the petitioner. Petitioner then filed O.S.No.865 of 2010 for the recovery of damages from the respondent alleging that articles supplied to the petitioner (by the respondent ) were not of good quality and on account of that, petitioner has suffered damages. O.S.No.615 of 2008 progressed much and it was posted for trial in the list on 16-09-2010. In O.S.No.865 of 2008 respondent has filed written statement and it is at that stage. It is while so that to facilitate joint trial petitioner O.P(C).No.417 of 2010 2 filed T.O.P.No.323 of 2010 for consolidation of the cases in the same court. Learned District Judge was not impressed by the contention raised by petitioner and vide Ext.P8, order dismissed the application. Learned District Judge has observed that request for transfer came at a time when O.S.No.615 of 2008 was included in the special list for trial. I have heard counsel on both sides. Learned counsel for petitioner states that the dispute in both the suits is one and the same - quality of articles supplied by the respondent. In such a situation, if the suits are tried and disposed of by two courts there is the possibility of divergent findings on that question. Learned counsel for respondent contends that attempt of petitioner is to delay disposal of O.S.No.615 of 2008 where respondent has made a counter claim for recovery of the amount due from petitioner. 2. It is not disputed that in O.S.No.615 of 2008 counter claim (which has all the trapping of a cross suit) made by the respondent is for recovery of the amount due for supply of articles to the petitioner. It is also not disputed that in O.S.No.615 of 2008 petitioner has claimed damages on the allegation that articles supplied by the respondent were of low O.P(C).No.417 of 2010 3 quality. Certainly a common question as to the quality of articles supplied is involved in both the cases. In Prem Lal Nathala Vs. Chandi Prasad ( 2007(1) KLT 910) (in paragraph 16) it is stated that when it appears to the court that some common question of law or fact arises in both the cases or, that for some other reason it is desirable to make an order for consolidating the suits it is within the power of the court to do so. I have stated that in both the suits a common question as to the quality of materials supplied by the respondent arises for a decision. In such a situation it is only just and proper that the cases are tried and disposed of jointly by the same court. In that view, the order of learned District Judge cannot be sustained and is liable to be set aside. Resultantly this petition is allowed in the following lines: (i) Ext.P8, order in T.O.P.No.323 of 2010 of the court of learned District Judge, Thrissur is set aside and that petition will stand allowed. (ii) O.S.No.615 of 2008 is withdrawn from the court of learned Principal Sub Judge, Thrissur and made over to the court of learned Additional Sub Judge-I, Thrissur for joint trial and disposal with O.S.No.865 of 2008. (iii) The transferor court shall transmit records of the case to the transferee court with due O.P(C).No.417 of 2010 4 intimation to counsel on both sides as to the date of appearance in transferee court. (iv) Learned Additional Sub Judge-I, Thrissur is directed to dispose of the suits, as expeditiously as possible. (THOMAS P JOSEPH, JUDGE) Sbna/-