IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 19TH AUGUST 2009 / 28TH SRAVANA 1931 WP(C).No. 30506 of 2008(F) -------------------------- OS.170/2007 of SUB COURT, PERUMBAVOOR OS.212/2005 of MUNSIFF COURT, PERUMBAVOOR .................... PETITIONER(S): ------------------------- 1. T.A. RAJESWARI, W/O.GOPALAKRISHNAN, AGED 41, MEPPALATH VEEDU, VEMBILLY.P.O, KUNNATHUNADU. 2. GOPALAKRISHNAN, AGED 45, S/O. JANAKI AMMA, MEPPALATH VEEDU, VEMBILLI.P.O, KUNNATHUNADU TALUK. BY ADV. MR.T.R.S.KUMAR RESPONDENT(S): --------------------------- 1. V.MADHUSOODANAN, AGED 55 YEARS, S/O. PADMANABHAN NAIR, VELUTHEDATH PARAMBIL VEEDU, MARADU KARA, MARADU VILLAGE, MARADU.P.O. 2. UNNI @ M.D. PADMAKUMAR, S/O. DIVAKARAMENON, AGED 39 YEARS, MANAKKIRI VEEDU, KANAYANNOOR TALUK, MARADU.P.O. 3. P.K. BANDU, AGED 35 YEARS, W/O. UNNI @ M.D. PADMAKUMAR, MANAKKIRI VEEDU, KANAYANNOOR TALUK, MARADU.P.O. 4. H.D.F.C, M.G. ROAD, ERNAKULAM. R1 BY ADV.MR.RONALD PAUL R4 BY ADV MR.K.K.CHANDRAN PILLAI, SC, HDFC THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.30506/2008 F APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF COUNTER AFFIDAVIT FILED BY THE PETITIONERS IN O.S.NO.212/2005. P2: COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONERS IN O.S.NO.212/2005. P3: COPY OF THE PLAINT IN O.S.NO170/2007 BEFORE THE SUB COURT, PERUMBAVOOR. P4: COPY OF THE WRITTEN STATEMENT FILED BY THE 1ST RESPONDENT IN O.S.NO.170/07. P5: COPY OF THE ORDER DTD. 14/03/2008 BY THE DISTRICT COURT. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss S.S. SATHEESACHANDRAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.30506 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 19th August, 2009 JUDGMENT The Writ Petition is filed seeking the following reliefs: 1. To issue a writ of mandamus or other appropriate writ direction or order directing to call for the trial court files in O.S.No.22/2005 and O.S.No.170/2005 pending before the Munsiff Court and Sub Court, Perumbavoor respectively in the interest of justice. 2. To issue a writ of certiorari to quash the order dated 14.3.2008 in TOP No.886/2007 by the Hon'ble District Court, Ernakulam and to allow transfer of O.S.No.212/2005 pending before the Munsiff Court, Perumbavoor to the Sub Court, Perumbavoor for joint trial with O.S.No.170/2007 in the interest of justice. 3. To issue a direction to stay the proceedings in O.S.No.212/2005 pending before the Munsiff Court, Perumbavoor until final disposal of this petition in the interest of justice. 4. To issue such other relief as this Hon'ble Court deem fit and proper in the facts and circumstances of the case. 2. Petitioners are the defendants in O.S.No.212 of 2005 on the file of the Munsiff Court, Perumbavoor. Suit is for perpetual prohibitory injunction and recovery of possession, and the W.P.C.No.30506/08 - 2 - respondents are the plaintiffs. The above suit was listed for trial on 22.10.2008. Petitioners who have filed another suit as O.S.No.170 of 2007 before the Sub Court, Perumbavoor, which was numbered and received on the file of the court after allowing their application to sue as indigent persons, in which they sought for setting aside sale deed on which the respondents raised their suit claim, moved an application for transfer of O.S.No.212 of 2005 to the Sub Court for joint trial of the two cases. The transfer petition, numbered as TOP No.886 of 2008, after hearing both sides, was dismissed by the learned District Judge vide P5 order. Propriety and correctness of P5 order is challenged invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 3. I heard the counsel on both sides. Subject matter involved and parties to the both suits are the same and common questions arise for consideration in both suits is the submission of the learned counsel for the petitioners for transfer of the suit pending before the Munsiff Court to the Sub Court for joint trial of the cases reversing P5 order passed by the learned District Judge. Evidently, the suit filed by the petitioners as plaintiffs numbered as O.S.No.170 of 2007 is in preliminary stages of trial, whereas the other suit filed by the W.P.C.No.30506/08 - 3 - respondents as plaintiffs, O.S.No.212 of 2005 on the file of the Munsiff Court, Perumbavoor had been once listed for trial, but recording of evidence presumably could not be commenced in view of the transfer petition filed before the District Court. After going through P5 order and taking note of the facts and circumstances presented, I find, in the given facts of the case, any order of transfer of the suit pending before the Munsiff Court to the Sub Court as desired by the petitioners would only delay and protract the litigation. Copy of the plaint in O.S.No.212 of 2005 has not been produced in the case to examine whether a joint trial of both the suits is warranted to avoid miscarriage of justice. On the submissions made and available materials produced, I find no reason to take a different view than what was taken by the learned District Judge under P5 order that the transfer sought for is not allowable. The Writ Petition is dismissed. srd S.S. SATHEESACHANDRAN, JUDGE