IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 25TH OCTOBER 2011 / 3RD KARTHIKA 1933 OP(C).No. 3082 of 2011(O) ------------------------------------- [OP.(TRANSFER) NO.50/2011 OF DISTRICT COURT, KOTTAYAM, O.S. 35/2010 OF THE SUB COURT, PALA, OS.NO.194/2010 OF MUNSIFF'S COURT, ERATTUPETTAH] .................... PETITIONER/PETITIONER: ------------------------------------- SHAHUL HAMEED, AGED 32, S/O.MUHAMMED VAVUKHAN, NEDUMAKKAL HOUSE, NADAKKAL P.O., ERATTUPETTA VILLAGE, MEENACHIL TALUK. BY ADV. SRI.LIJI.J.VADAKEDOM. RESPONDENT/RESPONDENT: ------------------------------------------- MATHAI, AGED 76, S/O.MATHAI, MUTHANATTU HOUSE, NADAKKAL KARA, TEEKOY VILLAGE, MEENACHIL TALUK-686 580. BY THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 25/10/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.(C).NO.3082/2011-O: APPENDIX PETITIONER'S EXHIBITS:- EXT.P.1: COPY OF THE PLAINT IN O.S. 35/2010 BEFORE THE SUB COURT, PALA. EXT.P.2: COPY OF THE WRITTEN STATEMENT. EXT.P.3: COPY OF THE PLAINT IN O.S. 194/2010 BEFORE THE MUNSIFF'S COURT, ERATTUPETTAH. EXT.P.4: COPY OF THE WRITTEN STATEMENT FILED IN O.S. 194/2010 BEFORE THE MUNSIFF'S COURT, ERATTUPETTAH. EXT.P.5: COPY OF THE ORDER DTD. 18/08/2011 IN O.P.(TRANSFER) 50/2011 BEFORE THE DISTRICT COURT, KOTTAYAM. RESPONDENT'S EXHIBITS:- NIL. //TRUE COPY// P.S. TO JUDGE Prv. THOMAS P.JOSEPH, J. ==================================== O.P(C) No.3082 of 2011 ==================================== Dated this the 25th day of October, 2011 J U D G M E N T Respondent is served but there is no response. 2. Petitioner is involved in two suits - O.S. No.35 of 2010 of the court of learned Sub Judge, Pala and O.S. No.194 of 2010 of the court of learned Munsiff, Erattupetta. He wanted joint trial of the said suits contending that in both the cases common issues are involved and filed O.P(Tr.) No.50 of 2011 in the court of learned District Judge, Kottayam. Learned District Judge held that transactions pleaded in both the cases are different, no common question of fact or law is involved and refused to order joint trial of the cases as per order dated 18.08.2011 in O.P(Tr.) No.50 of 2011. That order is under challenge. 3. To understand the request of petitioner, it is necessary to refer to the contentions raised in the suits. O.S. No.35 of 2010 pending in the court of learned Sub Judge, Pala filed by respondent is for recovery of advance money to the tune of Rs.2 lakhs as per O.P(C) No.3082 of 2011 -: 2 :- an agreement for sale. Petitioner, defendant in that suit contended that there was no such agreement for sale, it was a money transaction, he had borrowed Rs.1,00,000/- from the respondent who obtained signed blank papers as security for repayment of the said amount. The signed blank papers were misused and transformed into an agreement for sale, it is contended. According to the petitioner he further borrowed Rs.1,00,000/- and as security and executed sale deed No.1512/2008. The balance amount due to the respondent is only Rs.87,000/- which petitioner is willing to pay. Petitioner filed O.S. No.194 of 2010 in the court of learned Munsiff, Erattupetta against the respondent seeking re-conveyance of property on receiving Rs.87,000/-. In that suit respondent has raised appropriate contentions denying the averments in that plaint. 4. It is in the above circumstances that petitioner requested joint trial of the two suits and to facilitate that, filed O.P (Tr.) No.50 of 2011. It is true that O.S. No.35 of 2010 is for recovery of money while O.S. No.194 of 2010 is for a decree for re-conveyance of the property. But I must bear in mind that the contention petitioner has taken in both the suits is common - O.P(C) No.3082 of 2011 -: 3 :- that there was money transaction between him and respondent, he had borrowed Rs.1,00,000/-, gave signed blank papers to respondent, which was converted into an agreement for sale, petitioner borrowed further sum and executed sale deed No.1512 of 2008 as security, the balance amount payable to the respondent in the above transaction is Rs.87,000/-. It is for re- conveyance of the property covered by sale deed No.1512/2008 that petitioner has filed O.S. No.194 of 2010. The question is whether in the above circumstances it is necessary to order joint trial of the two suits. 5. In Prem Lala Nahata v. Chandi Prasad (2007 [1] KLT 910 [SC]) the power of court to consolidate suits is discussed. In paragraph 16 it is stated that jurisdiction of the court to consolidate (cases) arises where there are two or more matters or causes pending in the court and it appears to the court that some common question of law or fact arises in both or all the suits or that the right to relief claimed in the suits are in respect of or arise out the same transaction or series of transactions; or that for some other reason it is desirable to make an order consolidating the suits. O.P(C) No.3082 of 2011 -: 4 :- 6. As per the case pleaded by petitioner, it is part of series of transactions which resulted in his allegedly giving blank papers which respondent is said to have converted into agreement for sale (which is the subject matter of O.S. No.35 of 2010). In the same transaction he borrowed further amount and as security for repayment executed sale deed No.1512 of 2008 (which is the subject matter of O.S. No.194 of 2010). I am inclined to think that common question of fact is involved and at any rate going by the version of petitioner, the transaction in both the cases are part of the transactions so that it is appropriate that both the suits are tried and disposed of by the same court jointly. I must also bear in mind that parties in both the suits are same and no inconvenience or prejudice will be caused to them by refusing joint trial. In that view of the matter learned District Judge was not correct in ordering joint trial. Resultantly, Original Petition is allowed. Exhibit P5, order in O.P(Tr.) No.50 of 2011 is set aside and that petition is allowed. Consequently, O.S. No.194 of 2010 is withdrawn from the court of learned Munsiff, Erattupetta and made over to the court of learned Sub Judge, Pala for joint trial with O.S. No.35 of 2010. The O.P(C) No.3082 of 2011 -: 5 :- transferor court while transmitting records of the case to the transferee court shall fix the date for appearance of parties in the transferee court with due intimation to the counsel on both sides. THOMAS P. JOSEPH, JUDGE. vsv