IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 16TH OCTOBER 2008 / 24TH ASWINA 1930 WP(C).No. 30487 of 2008(D) -------------------------- OS.362/2003 of MUNSIFF COURT, THIRUVALLA .................... PETITIONER(S): --------------- UNNIKRISHNAN NAIR, S/O.VASUDEVAN PILLAI, KARTHIKA BHAVAN, AMALLOOR MURI, KUTTAPPUZHA VILLAGE, THIRUVALLA TALUK. BY ADV. SRI.P.HARIDAS SMT.SIMLA PRABHAKARAN SMT.SHIJIMOL M.MATHEW SRI.RENJI GEORGE CHERIAN SMT.SIJI JOY RESPONDENT(S): --------------- 1. G.M.VIJAYAN NAIR, S/O.MADHAVAN NAIR, LEKSHMI NIVAS, AMALLOOR MURI, KUTTAPPUZHA VILLAGE. 2. REMADEVI, W/O.G.M.VIJAYAN NAIR, LEKSHMI NIVAS, AMALLOOR MURI, KUTTAPPUZHA VILLAGE. 3. DEEPU VIJAYAN NAIR, S/O.G.M.VIJAYAN NAIR LEKSHMI NIVAS, AMALLOOR MURI, KUTTAPPUZHA VILLAGE. 4. G.M.MURALEEDHARAN NAIR, S/O.MADHAVAN NAIR, DEVASADANATH HOUSE, AMALLOOR MURI, KUTTAPPUZHA VILLAGE. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.RAMKUMAR ...................................... W.P. (C) No. 30487 of 2008 ....................................... DATED: 16th DAY OF OCTOBER 2008 Judgment Petitioner who is the plaintiff in O.S. 44 of 2002 on the file of the Munsiff's Court, Thiruvalla is the first defendant in O.S. 362 of 2003 before the same court. O.S. 44 of 2002 was filed by the petitioner for a perpetual injunction restraining the 7 defendants therefrom obstructing the plaintiff/petitioner using the plaint schedule item 2 pathway. The said suit was filed in January 2002. The petitioner claims to have obtained an interim injunction against the defendants in that suit. The first defendant in O.S. 44 of 2002 filed a suit O.S. 362 of 2003 in the next year for a declaration that he has exclusive right to use the pathway in question. On 25-9-2007, that is, nearly 5 years after the institution of O.S. 44 of 2002 the petitioner filed W.P.(C) No. 30487 of 2008 -:2:- I.A. 2547 of 2007 (Ext.P4) for amending the plaint to incorporate a plea of prescriptive easement without a prayer for declaration of the same and for incorporating the relief of mandatory injunction directing the defendants to open the gate at the belmouth of the pathway. Even according to the petitioner the pathway passes through the properties of defendants 1 to 3, 7th defendant Sasidharan and 5th defendant Lakshmikutty Amma. It does not pass through the property of the 6th defendant Unnikrishnan or 4th defendant Muraleedharan Nair. Even according to the petitioner it was defendants 1 to 3 who closed the gate at the belmouth. If so, the relief of mandatory injunction could not have been granted as against the other defendants. Apart from the above facts, no declaration with regard to the prescriptive right of easement has been prayed for in the suit even after Ext.P4 application for amendment. When the petitioner took out a commission in O.S. 44 of 2002 the offending gate was locked . Even according to the petitioner it was defendants 1 to 3 who had locked the gate which was allegedly used by him. But W.P.(C) No. 30487 of 2008 -:3:- Ext.P5 application for amendment of the plaint so as to incorporate the relief of mandatory injunction is not filed against defendants 1 to 3 alone but against all the 7 defendants. As mentioned earlier with regard to the prescriptive right of easement the original plaint did not contain the necessary averments and they were sought to be incorporated only as per Ext.P4 application filed on 25- 09-2007. Even then no relief of declaration of easement is prayed for in Ext.P4 application. The prayer for mandatory injunction if granted will not only be against defendants 1 to 3 but against defendants 4 to 7 as well. The petitioner has no case that the defendants 4 to 7 had blocked the gate necessitating the prayer for mandatory injunction. The petitioner had filed a second suit as O.S. 416 of 1001 seeking prescriptive easement and that suit was subsequently withdrawn and it was stated in that suit that he would be withdrawing the present suit O.S. 44 of 2002 as well. It was taking into account all these circumstances that the court below dismissed Ext.P4 application as per Ext. P7 order dated 12-08-2008. I see no reason to interfere W.P.(C) No. 30487 of 2008 -:4:- with the said order. 2. Ext.P5 application for joint trial of O.S. 44 of 2002 along with O.S. 362 of 2003 has been dismissed as per Ext.P8 order dated 12/08/2008. As rightly observed by the courts below parties to both the suits are not the same. In O.S. 44 of 2002 there are 7 defendants and the Thiruvalla Municipality is not a party to that suit. In O.S. 362 of 2003 filed by the first defendant in O.S. 44 of 2002 the only defendants are the petitioner herein and the Thiruvalla Municipality. The right claimed by the plaintiff in O.S. 362 of 2003 is exclusive right over the pathway. The right claimed in O.S. 44 of 2002 is for perpetual injuction not only restraining the plaintiff in O.S. 362 of 2003 but also six other defendants from obstructing the petitioner herein from using the pathway in question. I, therefoire, do not find any food ground for interfering with Ext.P8 order which has rightly dismissed the petition for joint trial of the two suits. Consolidation of two suit for the purpose of joint trial cannot be granted on a mere asking. The court below has taken into account all relevant aspects before dismissing W.P.(C) No. 30487 of 2008 -:5:- the application for joint trial of the two suits where the causes of action pleaded are also different, the parties are different and the reliefs prayed for are also different except that the pathway in question is a common subject matter in both the suits. This Writ Petition is accordingly dismissed. Dated this the 16th day of October 2008. Sd/- V.Ramkumar, Judge. /true copy/