IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 13TH DECEMBER 2010 / 22ND AGRAHAYANA 1932 OP(C).No. 951 of 2010(O) ------------------------------------- OS.181/2009 of SUB COURT, THIRUVALLA OS.314/2007 of MUNSIFF COURT, CHANGANACHERRY .................... PETITIONERS --------------------- 1. RAJU MALLIATH, MALLIATHU KALAMANDIRATHIL HOUSE,P.C.KAVALA PO, PAIPPAD MURI,PARIPPAD VILLAGE CHANGANACHERRY TALUK, KOTTAYAM DISTRICT. 2. REJI KUMAR,MALLIATHU KALAMANDIRATHIL HOUSE,P.C.KAVALA PO, PAIPPAD MURI,PARIPPAD VILLAGE CHANGANACHERRY TALUK, KOTTAYAM DISTRICT,NOW RESIDING IN MADHAVAAMANDIRAM,PERUNNA PO, CHANGANACHERRY. 3. REMESHY KUMAR,MALLIATHU KALAMANDIRATHIL HOUSE, P.C.KAVALA PO, PAIPPAD MURI,PARIPPAD VILLAGE,CHANGANACHERRY TALUK, KOTTAYAM DISTRICT, NOW RESIDING IN KOHINOOR HOUSE,KUTTOOR PO, THIRUVALLA. BY ADVS. SRI.SATHISH NINAN SRI.SANTHOSH MATHEW SRI.ARUN THOMAS RESPONDENT(S): ----------------------- 1. K.N.SINDHU,MANIMANDIRAM HOUSE,BUDDHA JUNCTION,KOTTARKAVU MURI,MAVELIKKARA VILLAGE, MAVELIKKARA TALUK,ALAPPUZHA DISTRICT. 2. MUHAMMED KUNJU,R/AT THEKKEKARA HOUSE, NEAR EAST MUTHOOT JUNCTION,KUTTAPPUZHA PO, THIRUVALLA TALUK. R1 BY ADV. SRI.MVS.NAMBOOTHIRY, SRI.CEANIX T.PALAKUZHI. THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 13/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss OP(C) NO.951/2010 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE AGREEMENT DTD. 6.11.2004 . P2:- COPY OF THE PLAINT OS NO.181/2009 FILED BEFORE THE SUB COURT, THIRUVALLA. P3:- COPY OF THE WRITTEN STATEMENT FILED IN OS. 181/2009 BEFORE THE SUB COURT, THIRUVALLA. P4:- COPY OF THE PLAINT OS 314/2007 FILED BEFORE THE MUNSIFF'S COURT, CHANGANACHERRY. P5:- COPY OF THE AMENDMENT APPLICATION. P6:- COPY OF THE WRITTEN STATEMENT IN OS. 314/2007. P7:- COPY OF THE IA. 1109/2010 IN OS. 181/2009. P8:- COPY OF THE OBJECTION FILED BY THE IST PETITIONER. P9:- COPY OF THE ORDER DTD. 5.10.2010 IN IA. 1109/2010 IN OS. 181/2009. P10:- COPY OF THE ORDER DTD. 5.10.2010 IN IA. 1107/2009 IN OS. 181/2009. RESPONDENT'S EXHIBITS R1(a):- COPY OF THE PLAINT IN OS. NO.504/2009 BEFORE THE SUB COURT, KOTTARKAVU. R1(b):- COPY OF THE ORDER DTD. 27.9.29010 IN CMA. 74/2009 OF THE ADDL. DISTRICT COURT, KOTTAYAM. R1(c):- COPY OF THE PLAINT IN OS. NO.139/2010 BEFORE THE MUNSIFF COURT, CHANGANACHERRY. R1(d):- COPY OF THE PLAINT IN OS. NO.328/2009 BEFORE THE MUNSIFF COURT, CHANGANACHERRY. TRUE COPY P.S. TO JUDGE tss THOMAS P.JOSEPH, J. ==================================== O.P(C) No.951 of 2010 ==================================== Dated this the 13th day of December, 2010 J U D G M E N T Respondent No.1 appears through counsel. Notice to respondent No.2 is served through counsel appearing in the trail could and memo to that effect is filed. That amounts to sufficient service of notice under Rule 59 of the Rules of the High Court of Kerala. 2. This petition is filed by the plaintiffs in O.S. No.181 of 2009 of the court of learned Sub Judge, Thiruvalla. That is a suit for specific performance of Ext.P1, agreement dated 06.11.2004. Respondent No.1 is the defendant in that suit. She filed O.S. No.314 of 2007 in the court of learned Munsiff, Changanacherry for a decree for prohibitory injunction, it is not disputed before me, concerning the very same property involved in O.S. No.181 of 2009 and based on the agreement dated 06.11.2004. When O.S. No.181 of 2009 was posted for trail in the list, respondent No.1 filed Ext.P7, I.A. No.1109 of 2009 under Section 10 of the Code of Civil Procedure for a stay of that suit until O.S.No.314 of 2007 pending in the court of learned Munsiff Changanacherry is disposed O.P(C) No.951 of 2010 -: 2 :- of. That application was allowed as per Ext.P9, order which is under challenge in this petition. I have heard learned counsel for petitioners and respondent No.1. It is contended by learned counsel for respondent No.1 that concerning the same matter three other suits are pending - O.S. No.504 of 2009 filed by one Nazar against petitioners and respondent No.1 in the court of learned Principal Sub Judge, Kottayam and O.S. No.328 of 2009 filed by the petitioners against the said Nazar and O.S. No.139 of 2010 filed by the said Nazar against petitioners and respondent No.1, both in the court of learned Munsiff, Changanacherry. According to the learned counsel for respondent No.1 all the suits are to be tried and disposed of by the same court having territorial jurisdiction over the property involved, i.e., court of Principal Sub Judge, Kottayam. 3. It would appear that all the suits concerned the very same property though agreements pleaded are different. Having regard to the facts and circumstances of the case I am not inclined to think that trial of O.S. No.181 of 2009 should be stayed until O.S. No.314 of 2007 of the court of learned Munsiff, Changanacherry is disposed of. Instead since O.S. No.504 of 2009 concerning the very same property is pending before the learned Sub Judge, Kottayam and it is not disputed before me that the said O.P(C) No.951 of 2010 -: 3 :- court has territorial jurisdiction over the property involved, proper course is to set aside Ext.P9, order, withdraw O.S. No.181 of 2009 from the court of learned Sub Judge, Thiruvalla and O.S.No.314 of 2007 from the court of learned Munsiff, Changanacherry and make over the said cases to the court of learned Principal Sub Judge, Kottayam leaving the issue regarding joint trial to be decided by the learned Principal Sub Judge after hearing counsel on both sides. Resultantly, this petition is disposed of in the following lines: (i) Exhibit P9, order is set aside. (ii) O.S. No.181 of 2009, Sub Court, Thiruvalla and O.S. No.314 of 2007, Munsiff's Court, Changanacherry are withdrawn from those courts and transferred to the court of learned Principal Sub Judge, Kottayam. (iii) The transferor courts while transmitting records of the cases to the transferee court shall fix the date for appearance of parties in the transferee court with due intimation to the counsel on both O.P(C) No.951 of 2010 -: 4 :- sides. It will be open to the parties concerned to move the learned District Judge, Kottayam for transfer of O.S. Nos.328 of 2009 and 139 of 2010, both pending in the court of learned Munsiff, Changanacherry to the court of learned Principal Sub Judge, Kottayam and if any such request is made learned District Judge, Kottayam shall consider that request on merit and pass appropriate orders. THOMAS P. JOSEPH, JUDGE. vsv