IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 2ND JULY 2010 / 11TH ASHADHA 1932 WP(C).NO. 20643 OF 2010(O) ----------------------------------------- O.P. NO.71/2003 AND O.S. NO.38 OF 2006 OF I ADDL.SUB COURT,TRIVANDRUM .................... PETITIONER(S): ------------------------- 1. SUKU, S/O.DAMODARAN, AGED 44 YEARS, RESIDING AT T.C.NO.5/201, KOWDIAR ROAD, KUDAPPANAKUNNU VILLAGE,THIRUVANANTHAPURAM-695 005. 2. KRISHNANKUTTY, RESIDING AT KRISHNASARA VADAKKEVEEDU, NCC ROAD, PEROORKADA, THIRUVANANTHAPURAM-695 005. 3. SUDHAMANI, RESIDING AT SUDHABHAVAN, CHRIST NAGAR ROAD, VAZHAYILLA, KARAKULAM, THIRUVANANTHAPURAM-695 005. BY ADV. SRI.R.S.KALKURA SRI.M.S.KALESH SRI.HARISH GOPINATH SRI.V.VINAY MENON SRI.M.AJAY (IRUMPANAM) RESPONDENT(S): --------------------------- 1. THE STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM-01. 2. THE SECRETARY, LOCAL ADMINISTRATION, GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM-01. 3. THE SECRETARY (HOME), GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM-01. 4. KERALA WATER AUTHORITY, REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR, VELLAYAMBALAM, JALA BHAVAN, THIRUVANANTHAPURAM-695 014. 5. THE ASSISTANT ENGINEER, KERALA WATER AND WASTE WATER AUTHORITY, NORTHERN SUB DIVISION, THIRUVANANTHAPURAM-695 014. 6. THE ASSISTANT EXECUTIVE ENGINEER, PH SUB DIVISION, KERALA WATER AUTHORITY, KOWDIAR, THIRUVANANTHAPURAM-695 014. 7. RAMANUJAN, MANAGING DIRECTOR, KERALA WATER AUTHORITY, JALA BHAVAN, VELAYAMBALAM, THIRUVANANTHAPURAM-695 014. 8. ASOKAN.R, WORKING AS OVERSEER, KERALA WATER AUTHORITY, PEROORKADA, THIRUVANANTHAPURAM-695 005. 9. KRISHNA KUMAR, EXECUTIVE ENGINEER, KERALA WATER AUTHORITY, PEROORKADA, THIRUVANANTHAPURAM-695 005. 10. NARAYANAN NAIR, ASST.ENGINEER WATER SUPPLY SUB DIVISION, PEROORKADA, THIRUVANANTHAPURAM-695 005. 11. J.CHANDRA, MAYOR, CITY CORPORATION OF THIRUVANANTHAPURAM, THIRUVANANTHAPURAM-695 033. 12. CITY CORPORATION OF THIRUVANANTHAPURAM, REPRESENTED BY ITS COMMISSIONER/SECRETARY, CITY CORPORATION BUILDING, THIRUVANANTHAPURAM-695 033. 13. B.SURESH KUMAR, SUB INSPECTOR OF POLICE, PEROORKADA POLICE STATION PEROORKADA, THIRUVANANTHAPURAM-695 005. 14. S.THULASI, ASSISTANT SUB INSPECTOR OF POLICE, PEROORKADA POLICE STATION, PEROORKADA, THIRUVANANTHAPURAM-695 005. 15. V.SUNDARSANAN, ZTP-1, BUILDING INSPECTOR, THIRUVANANTHAPURAM CORPORATION-695 033. 16. RAVEENDRAN NAIR, BUILDING INSPECTOR, THIRUVANANTHAPURAM CORPORATION-695 033. 17. VENUGOPAL, CITY CORPORATION OF THIRUVANANTHAPURAM-695 033. ADV. SMT. S.AMBIKA DEVI, STANDING COUNSEL FOR WATER AUTHORITY - FOR R4 TO R6 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.20643 of 2010 -------------------------------------- Dated this the 02nd day of July, 2010 JUDGMENT Petitioners are plaintiffs in O.P (Ind.) No.71 of 2003 and O.S. No.38 of 2006 both of the court of learned Principal Sub Judge, Thiruvananthapuram. According to the learned counsel for petitioners both the suits are in respect of the same property. In O.P(Ind.) No.71 of 2003 the prayer is for recovery of damages to the tune of Rs.49,50,000/-- on account of respondents allegedly trespassing into the suit property involved in O.S. No.38 of 2006 and demolishing the structures allegedly belonging to the petitioners. In O.S. No.38 of 2006 prayer is for declaration of title and possession of property in respect of which damages is claimed in O.P (Ind.) No.71 of 2003. In O.S. No.38 of 2006 petitioners filed I.A.No.7445 of 2009 for issue of a commission but the suit was later dismissed for default. According to the learned counsel for respondents I.A.No.7445 of 2009 was also closed. Learned counsel for petitioners would maintain that when O.S. No.38 of 2006 was later restored to file I.A.No.7445 of 2009 also got revived. Grievance of petitioners is that in so far as subject matter of both proceedings are one and the same petitioners filed I.A. No.3394 of W.P(C) No.20643 of 2010 2 2010 in O.S. No.38 of 2006 for a joint trial of that case with O.P(Ind.) No.71 of 2003. But that application has not been disposed of and instead is posted with the suit which is being brought up for trial in the list on 03.07.2010. Learned counsel therefore seeks a direction to the learned Sub Judge to dispose of I.A. Nos.7445 of 2009 and 3394 of 2010 before examination of witnesses in O.S. No.38 of 2006 commenced. Learned counsel for respondents vehemently contended that petitioners have no right or interest over the property referred to in both the proceedings and that it is a case of rank trespass. According to the learned counsel I.A.No.7445 of 2009 does not survive for consideration since it was closed when O.S. No.38 of 2006 was dismissed for default. 2. I am not going into the question whether I.A. No.7445 of 2009 survives for a decision after restoration of O.S. No.38 of 2006. That is a matter which the learned Sub Judge has to consider and decide. If that application is pending necessarily it has to be disposed of before O.S. No.38 of 2006 is disposed of. Application for joint trial if any pending is to be disposed of before commencement of examination of witnesses. Resultantly, this Writ Petition is disposed of in the following lines: (i) Learned Principal Sub Judge, W.P(C) No.20643 of 2010 3 Thiruvananthapuram shall dispose of I.A. No.3394 of 2010 (for joint trial) before examination of witnesses in O.S. No.38 of 2006 commenced. (ii) In case I.A. No.7445 of 2009 survives for a decision, learned Principal Sub Judge shall dispose of that application before O.S.No.38 of 2006 is disposed of. (iii) In case I.A. No.7445 of 2009 is closed consequent to the dismissal of O.S. No.38 of 2006 for default it will be open to the petitioners to seek revival of that application if they are otherwise entitled to that course and if any application in that regard is filed on 03.07.2010, learned Sub Judge shall decide that application according to its merit and as law provided. THOMAS P.JOSEPH, Judge. cks