IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 3RD NOVEMBER 2011 / 12TH KARTHIKA 1933 Tr.P(C).No. 154 of 2011() ------------------------- OS.565/2010 of III ADDL.MUNSIFF COURT, EKM (RENT CONTROL) .................... PETITIONER: -------------------- SEENA RAYMOND MENDEZ, AGED 31 YEARS, W/O.RAYMOND MENDEZ, VALIYAPARAMBIL HOUSE, VADUTHALA DESOM, CHERANELLOOR VILLAGE, VADUTHALA P.O., NEAR ANGLO INDIAN SCHOOL ROAD, COCHIN-682023. BY ADV. SRI.T.M.ABDUL LATHEEF RESPONDENTS: (PLAINTIFFS & DEFENDANTS 2 & 3 IN OS.NO.565 OF 2010) -------------------------------------------------- 1. ANTONY SEVERANCE, AGED 72 YEARS, S/O.ROCKY SEVERANCE, VALIYAPARAMBIL, VADUTHALA DESOM, CHERANELLOOR VILLAGE, VADUTHALA P.O., NEAR ANGLO INDIAN SCHOOL ROAD, COCHIN-682023. 2. VINCENT HENRY SEVERANCE, AGED 45 YEARS, S/O.ANTONY SEVERANCE, VALIYAPARAMBIL, VADUTHALA DESOM, CHERANELLOOR VILLAGE, VADUTHALA P.O., NEAR ANGLO INDIAN SCHOOL ROAD, COCHIN-682023. 3. DERRY MENDEZ, AGED 45 YEARS, S/O.MANUAL MENDEZ, VALIYAPARAMBIL, VADUTHALA DESOM, CHERANELLOOR VILLAGE, VADUTHALA P.O., NEAR ANGLO INDIAN SCHOOL ROAD, COCHIN-682023. 4. DENNY MENDEZ, AGED 41 YEARS, S/O.MANUAL MENDEZ, VALIYAPARAMBIL, VADUTHALA DESOM, CHERANELLOOR VILLAGE, VADUTHALA P.O., NEAR ANGLO INDIAN SCHOOL ROAD, COCHIN-682023. ADV. SRI.A.BALAGOPALAN FOR R1-2 SRI.A.RAJAGOPALAN FOR R1-2 THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. ---------------------------------------- Tr.P(C).No.154 of 2011 --------------------------------------- Dated this 03rd day of November, 2011 ORDER This petition is for transfer of O.S.No.565 of 2010 from the Court of learned third Additional Munsiff, Ernakulam to the Court of learned third Additional Sub Judge, Ernakulam. 2. Respondents 1 and 2 filed O.S.No.565 of 2010 in the Court of learned third Additional Munsiff, Ernakulam against the petitioner and respondents 3 and 4 seeking a decree for prohibitory injunction against putting up compound wall (allegedly) reducing width of the pathway. Petitioner filed O.S.No.369 of 2010 in the Court of learned third Additional Sub Judge, Ernakulam for a decree for prohibitory injunction to restrain respondents 1 and 2 from causing obstruction to her constructing boundary wall on the southern side of her property. The prayer in this petition is to transfer O.S.No.565 of 2010 to the Court of learned third Additional Sub Judge, Ernakulam to facilitate joint trial of the cases. It is submitted by the learned counsel that O.S.No.369 of 2010 is stayed by the learned third Additional Sub Judge on the application preferred by the respondents 1 and 2 under Sec.10 of the Code of Civil Procedure Tr.P(C).No.154 of 2011 -: 2 :- (for short, "the Code”) on account of pendency of O.S.No.565 of 2010 in the Court of learned third Additional Munsiff, Ernakulam. 3. Learned counsel for respondents 1 and 2 submits that it is suppressing pendency of O.S.No.565 of 2010 and the order of injunction passed therein that petitioner filed O.S.No.369 of 2010 and as the subsequent suit, it was stayed under Sec.10 of the Code. 4. Petitioner ought to have approached the learned District Judge, Ernakulam for transfer of the case since it is a matter of transfer within the district. However this application is pending in this Court from 29.05.2010 onwards. Hence I am inclined to consider the application on merit. 5. Since both suits concern construction of compound wall on the southern side of property of petitioner, it is appropriate that both the cases are tried and disposed of by the same Court notwithstanding as to which suit was filed earlier. It is appropriate that both the cases are tried and disposed of jointly. In that view of the matter I am inclined to allow the request for transfer. 6. I am told that steps in O.S.No.369 of 2010 are complete. Learned counsel for respondents 1 and 2 states that steps in O.S.No.565 of 2010 are not complete. After the case is Tr.P(C).No.154 of 2011 -: 3 :- transferred to the Court of learned third Additional Sub Judge, Ernakulam respondents 1 and 2 can request learned Sub Judge to grant time in O.S.No.565 of 2010 to complete the pre-trial steps so that, both the cases could be tried and disposed of jointly. Resultantly this transfer petition is allowed as follows: (i) O.S.No.565 of 2010 is withdrawn from the Court of learned third Additional Munsiff, Ernakulam and transferred to the Court of learned third Additional Sub Judge, Ernakulam. (ii) Learned third Additional Sub Judge, Ernakulam shall consider whether both the suits could be tried and disposed of jointly and in which case learned Sub Judge may pass orders vacating the stay in O.S.No.369 of 2010 under Sec.10 of the Code and direct joint trial and disposal of the case after giving parties opportunity to take pre-trial steps in the respective cases as provided under law. (iii) The transferor court shall transmit records of the case to the transferee court with due intimation to the counsel on both sides as to the date of appearance in the transferee court. (THOMAS P. JOSEPH, JUDGE) Sbna/-