IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 13TH OCTOBER 2011 / 21ST ASWINA 1933 OP(C).No. 3272 of 2011(O) ------------------------- AGAINST THE ORDER IA NO.271/2011 IN OS.3/2010 of MUNSIFF COURT, KOLENCHERRRY .................... PETITIONER(S): ------------------------------ MATHEW, S/O.KURIAN,VANDANATHIL HOUSE, MANGATTOOR KARA, AIKKARANADU NORTH VILLAGE,PIN 682 311. BY ADV. SRI.DINESH R.SHENOY SRI.G.HARIKRISHNAN (TRIPUNITHURA) RESPONDENT(S): --------------- 1. KURUVILA, S/O.KURIAN,VANDANATHIL HOUSE,MANGATTOOR KARA, AIKKARANADU NORTH VILLAGE, PIN 682 311. 2. GEORGE V.KURIAN, S/O.KURIAN,-DO- -DO- 3. MERY, W/O.GEORGE MATHEW,PADIYIL HOUSE, VARIKKOLY KARA,PUTHENCRUZ VILLAGE 682 308. 4. JOY ABRAHAM, RAKKUZHIPUTHENPURAYIL, MANGATTOOR KARA,AIKKARANADU NORTH VILLAGE, PIN 682 311. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 13/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C)NO.3272/2011 APPENDIX PETITIONER(S) EXHIBITS EXT.P1 TRUE PHOTOCOPY OF THE PLAINT IN OS NO.17/2009, MUNSIFF COURT,KOLENCHERY. EXT.P2 TRUE PHOTOCOPY OF THE WRITTEN STATEMENT DATED 6/7/2009 FILED IN O.S.NO.17/2009,MUNSIFF COURT,KOLENCHERY. EXT.P3 TRUE PHOTOCOPY OF THE PLAINT IN O.S.NO.3/2010, MUNSIFF COURT,KOLENCHERY. EXT.P4 TRUE PHOTOCOPY OF WRITTEN STATEMENT DATED 17/5/2010 IN O.S.NO.3/2010,MUNSIFF COURT,KOLENCHERY. EXT.P5 TRUE PHOTOCOPY OF WRITTEN STATEMENT DATED 24/2/2010 FILED BY THE 3RD RESPONDENT HEREIN IN O.S. NO.3/2010,MUNSIFF,KOLENCHERY EXT.P6 TRUE PHOTOCOPY OF I.A.NO.271/2011 IN O.S.NO.3/2010, MUNSIFF COURT,KOLENCHERY. EXT.P7 TRUE PHOTOCOPY OF THE OBJECTION DATED 22/7/2011 FILED IN I.A. NO.271/2011 IN O.S.NO.3/2010,MUNSIFF COURT,KOLENCHERY. EXT.P8 TRUE PHOTOCOPY OF THE ORDER DATED 12/8/2011 IN I.A.NO.271/2011 IN O.S.NO.3/2010,MUNSIFF COURT,KOLENCHERY. RESPONDENTS' EXHIBITS //TRUE COPY// THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.3272 of 2011 -------------------------------------- Dated this the 13th day of October, 2011. JUDGMENT Petitioner is the first defendant in O.S.Nos.17 of 2009 and 3 of 2010 of the court of learned Munsiff, Kolencherry. Learned Munsiff passed Ext.P8, order allowing joint trial of the two suits which is under challenge in this proceeding on the ground that there is nothing common between the two suits to be jointly tried except that some of the parties are same. 2. As I am told, O.S.No.17 of 2009 is one for prohibitory injunction filed by respondents 1 and 2 in respect of 7.40 Ares of land in re-survey No.35/9. 1st respondent is claiming title and possession of the said property as per document No.1977 of 1982. Petitioner filed Ext.P2, written statement claiming that the said property is part of property obtained by him as per gift deed No.3244 of 1969 and that a portion of the property covered by the said document was assigned to the 4th respondent in the year, 2008. Petitioner denied that respondents 1 and 2 are in possession of the said 7.40 Ares scheduled in O.S.No.17 of 2009. 3. Respondents 1 and 2 filed O.S.No.3 of 2010 for partition of plaint A to E schedules. In that suit, plaint E schedule is 5 Ares in re-survey No.35/9. In that case, petitioner has filed written statement taking appropriate contentions as regards the properties referred to in that suit. OP(C)No.3272/2011 2 4. It is while so, on the request of respondents 1 and 2 learned Munsiff has ordered joint trial as per Ext.P8, order. Learned counsel has contended that in O.S.No.17 of 2009, the property scheduled is 7.40 Ares in re- survey No.35/9 while in O.S.No.3 of 2010, plaint E schedule is only 5 Ares in re- survey No.35/9. It is contended by learned counsel that a survey commission was taken in O.S.No.17 of 2009 and the Commissioner has submitted report and plan. On the factual situation emerging in that case petitioner did not think it necessary at that stage to challenge the report and plan in O.S.No.17 of 2009. Grievance of petitioner is that on the facts joint trial is not required and at any rate, the consequence of joint trial is that report and plan in O.S.No.17 of 2009 which on the factual situation petitioner did not object at that stage will be made use of in O.S.No.3 of 2010 which will prejudice petitioner. It is submitted by learned counsel that in O.S.No.3 of 2010 petitioner did not get sufficient time to take steps including for appointment of a survey commission (if that is found necessary). 5. So far as Ext.P8, order allowing joint trial is concerned, I am not inclined to think that I should interfere in the matter. For, whatever the claim made by respondents 1 and 2 be, it is not disputed that at least a portion of the property scheduled in O.S.No.17 of 2009 is referred to in plaint E schedule of O.S.No.3 of 2010. In that situation, it is appropriate that for a proper adjudication of the dispute arising from the pleadings of the parties the two suits (O.S.Nos.17 of 2009 and 3 of 2010) are jointly tried. OP(C)No.3272/2011 3 6. But the grievance of petitioner is that he did not get time to take necessary steps in O.S.No.3 of 2010 and that on the factual situation, it was not necessary before joint trial was ordered to challenge the report and plan in O.S.No.17 of 2009 requires consideration. Learned counsel submits that the cases are posted for trial in the list this day and that the instruction given is that the cases have been adjourned to some other day. 7. In the circumstances stated above, it is appropriate that petitioner is permitted to take necessary steps in the suits as circumstances warranted and having regard to the contentions he has raised in the said suits. Resultantly this Original Petition is disposed of as follows: While Ext.P8, order in O.S.No.3 of 2010 is not being interfered with, learned Munsiff, Kolencherry is directed to give sufficient time to petitioner to take necessary steps in the suits as circumstances warranted and having regard to the contentions which petitioner has raised in the respective suits. After pre- trial steps are over, the suits could be posted for trial in list. THOMAS P.JOSEPH, Judge. cks