IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 22ND NOVEMBER 2010 / 1ST AGRAHAYANA 1932 OP(C).NO. 693 OF 2010(O) ------------------------ OS.409/2008 OF MUNSIFF COURT,ALUVA PETITIONERS/DEFENDANTS: ------------------------------------------ 1. K.A.ASHOKAN, AGED 60, S/O.KERALA VARMA THIRUMULPADU, BHAVANA, POOPPANI ROAD, PERUMBAVOOR. 2. K.K.UDAYAN, S/O.KERALA VARMA THIRUMULPADU, AGED 58 YEARS, PRANAVAM, POOZHICHIRA ROAD, THIRUVANNOOR, KOZHIKODE. 3. SHOBHANA K.K., W/O.GOPALA KRISHNA IYER, KARTHIKA, VELLANTHARA, CHITTOOR, PALAKKAD. BY ADV. SRI.S.SREEKUMAR SRI.P.PRIJITH SRI.S.VAIDYANATHAN SRI.P.MARTIN JOSE RESPONDENT(S): PLAINTIFF/DEFENDANTS --------------------------------------------------------------- 1. UPENDRA NARAYANAN, S/O.K.NARAYANA PANICKER, AGED 56, KUNNAYATH HOUSE, KOTHAKULANGARA, ANGAMALY VILLAGE, PIN-683572. 2. K.SOMA VARMA, AGED 61 YEARS, S/O.KAVUKKUTTY NAMPISHATATHIRI, RESIDING AT CHERIYATTU MANA, NORTH PARUR, PIN-683513. 3. K.K.VIJAYAN, AGED 63 YEARS, S/O.KAVUKKUTTY NAMPISHATATHIRI, RESIDING AT KOIKKAL MADAM, KIZHAKKUMBHAGOM, KANJOOR, PIN-683575. ADV. SRI.ANIL THOMAS(T) FOR R2,3 SMT.K.V.RESHMI FOR R2,3 THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 22/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX --------------- PETITIONER'S EXHIBITS: --------------------------------- EXHIBIT P1 TRUE COPY OF PLAINT IN O.S. NO.397 OF 2008 OF THE MUNSIFF'S COURT, ALUVA. EXHIBIT P2 TRUE COPY OF WRITTEN STATEMENT IN O.S. NO.397 OF 2008 FILED BY THE FIRST RESPONDENT. EXHIBIT P3 TRUE COPY OF PLAINT IN O.S. NO.409 OF 2008 OF MUNSIFF'S COURT, ALUVA. EXHIBIT P4 TRUE COPY OF WRITTEN STATEMENT IN O.S. NO.409 OF 2008 FILED BEFORE THE MUNSIFF'S COURT, ALUVA. EXHIBIT P5 TRUE COPY OF I.A. NO.1238 OF 2010 IN O.S. NO.409 OF 2008 FILED BEFORE THE MUNSIFF'S COURT, ALUVA. EXHIBIT P6 TRUE COPY OF THE ORDER IN I.A. NO.1238 OF 2010 IN O.S. NO.409 OF 2008 DATED 9.11.2010. RESPONDENT'S EXHIBITS: ----------------------------------- NIL TRUE COPY THOMAS P.JOSEPH, J. ==================================== O.P(C) No.693 of 2010 ==================================== Dated this the 22nd day of November, 2010 J U D G M E N T Respondent No.1 is served by special messenger. Respondent Nos.2 and 3 appear through counsel. 2. Exhibit P6, order dated November 9, 2010 on I.A. No.1238 of 2010 in O.S. No.409 of 2008 of the court of learned Munsiff, Aluva is under challenge in this petition. Petitioners filed O.S. No.397 of 2008 against respondent No.1 for a decree for prohibitory injunction against trespass into the suit properties. Respondent No.1 filed written statement claiming a right of way through the suit properties (which according to the petitioners was after cutting open a new way). Respondent No.1 filed O.S. No.409 of 2008 against petitioners seeking a declaration of right of easement over the said way. That suit is resisted by petitioners. They filed I.A. No.1238 of 2010 in O.S. No.409 of 2008 for an order for joint trial of the two suits. That application was dismissed by the learned Munsiff vide Ext.P6, order observing that parties and subject matter in both the suits are not one and the same and in O.P(C) No.693 of 2010 -: 2 :- the circumstances it is not advisable to order joint trial which may cause prejudice to the parties. Learned counsel appearing for petitioners and respondent Nos.2 and 3 submit that dispute concerned right of way through the suit properties and that it is not correct to say that subject matter of the suits are different and that parties are also different. 3. For the purpose of ordering joint trial it is not necessary that there must be complete identity of parties. What is required to be considered is whether subject matter of the suits is one and the same and if the suits are tried separately there is possibility of divergent findings being entered. The Supreme Court in Prem Lala Nahata v. Chandi Prasad (2007 [1] KLT 910 [SC]) has pointed out circumstances under which court could order joint trial. In paragraph 16 it is observed that jurisdiction to consolidate cases arises where there are two or more matters or causes pending in the 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 rights to relief claimed in the suits are in respect of or arise out of the same transaction or series of transactions; or that for some other reason it is desirable to make an order consolidating the suits. In the present case petitioners O.P(C) No.693 of 2010 -: 3 :- wanted a decree for prohibitory injunction against respondent No.1 trespassing into the plaint schedule properties but respondent No.1 stated that he has a right of access through the suit properties and prayed for declaration of that right. In such a situation unless joint trial of the suits is ordered possibility of divergent findings being entered in the suits cannot be ruled out. Resultantly, Original Petition is allowed in the following lines: (i) Exhibit P6, order dated November 9, 2010 dismissing I.A. No.1238 of 2009 in O.S. No.409 of 2008 is set aside and that application will stand allowed. (ii) Learned Munsiff shall consolidate the suits and dispose of the same jointly treating one of the cases as the main case in which parties are required to adduce evidence. THOMAS P. JOSEPH, JUDGE. vsv