IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 1ST JUNE 2010 / 11TH JYAISTHA 1932 WP(C).NO. 8669 OF 2010(O) ---------------------------------------- AGAINST O.S. NO.138 OF 2006 AND OS 170/2007 PRINCIPAL SUB COURT,ATTINGAL .................... PETITIONER(S): ------------------------- A.THOMAS, S/O.ABRAHAM THOMAS, VALIATHU VEEDU, NEDUMON ARUKKALIKKAN KIZHAKKU MURI, EZHUKULAM VILLAGE, ADOOR TALUK. BY ADV. SRI.LATHEESH SEBASTIAN RESPONDENT(S): ---------------------------- 1. N.RAJENDRAN, AGED 48, S/O.NADARAJAN, RAJ BHAVAN, VAMANAPURAM POST, KAREETTU MURI, PULIMATHU VILLAGE, CHIRAYINKIL TALUK. 2. S.A.USHA, W/O.RAJENDRAN, DO. DO. ADV. SRI.J.JAYAKUMAR FOR R1-2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX --------------- PETITIONER'S EXHIBITS: ---------------------------------- EXHIBIT P1 TRUE COPY OF THE PLAINT IN O.S. NO.138 OF 2006 OF SUB COURT, ATTINGAL. EXHIBIT P2 TRUE COPY OF THE WRITTEN STATEMENT IN EXT.P1. EXHIBIT P3 TRUE COPY OF THE PLAINT IN O.S. NO.170 OF 2007 OF SUB COURT, ATTINGAL. EXHIBIT P4 TRUE COPY OF THE WRITTEN STATEMENT IN O.S. NO.151 OF 2006 OF SUB COURT, PATHANAMTHITTA. EXHIBIT P5 TRUE COPY OF THE ORDER T.P(C) NO.42 OF 2007. EXHIBIT P6 TRUE COPY OF I.A. NO.80 OF 2010 IN O.S. NO.138 OF 2006 OF SUB COURT, ATTINGAL. EXHIBIT P7 TRUE COPY OF THE OBJECTION TO EXHIBIT P6. EXHIBIT P8 TRUE COPY OF THE ORDER DATED 23.1.2010 IN EXHIBIT P6. RESPONDENT'S EXHIBITS: ----------------------------------- NIL TRUE COPY THOMAS P.JOSEPH, J. ==================================== W.P(C) No.8669 of 2010 ==================================== Dated this the 01st day of June, 2010 J U D G M E N T Petitioner, it is not disputed had an agreement for purchase of property belonging to the respondents and a sum of Rs.6,00,000/- was paid to respondents as advance. Thereafter dispute arose between the parties and the transaction did not go through. Petitioner filed O.S. No.138 of 2006 in the court of learned Sub Judge, Attingal for realisation of the advance money. Respondents resisted that suit contending that breach was on the part of the petitioner and they suffered loss on account of that and they are entitled to adjust the advance money towards damages. Before the Sub Court at Pathanamthitta petitioner filed another suit W.P(C) No.8669 of 2010 -: 2 :- - O.S. No.151 of 2006 against respondent No.1 (defendant No.1 in O.S.No.138 of 2006) for recovery of money stating that apart from the advance of Rs.6,00,000/- involved in O.S. No.138 of 2006 respondent No.1 had borrowed another sum of Rs.7,00,000/- from him and that amount has not been repaid. In that case respondent No.1 raised a contention that he had received only Rs.4,00,000/- from the petitioner and that he is entitled to adjust the said amount also towards the loss suffered by him and it is on account of the breach committed by the petitioner in performing his part of the agreement for sale in O.S. No.138 of 2006. As prayed for by the respondents the suit pending in the Sub Court, Pathanamthitta was withdrawn from that court and transferred to W.P(C) No.8669 of 2010 -: 3 :- the Sub Court, Attingal as per Ext.P5, order dated 14.09.2007 in Tr.P(C) No.42 of 2007. Thereafter that case was renumbered as O.S. No.170 of 2006. Petitioner wanted the suits to be tried and disposed of jointly in view of the contentions raised by respondent No.1 in O.S. No.170 of 2006 by filing I.A. No.80 of 2010. That application was opposed by respondent No.1. Learned Sub Judge vide Ext.P8, order held that respondent No.1 denied that the cause of action in the suits is same and dismissed the application. That order is under challenge in this Writ Petition. Learned counsel for petitioner contends that learned Sub Judge has not applied his mind on the question whether joint trial of the suits is necessary to avoid divergent findings and dismissal of the W.P(C) No.8669 of 2010 -: 4 :- application is merely on the strength of the argument of counsel for respondent No.1 that cause of action for the suits is not same. Learned counsel also invited my attention to Ext.P5, order. Learned counsel for respondents would contend that joint trial of the suits is not necessary. 2. It is seen from Ext.P8, order that the learned Sub Judge has not adverted to the question whether joint trial of the suits is necessary to avoid divergent findings on the same issues. But in the nature of the contentions raised I do not find it necessary to remit I.A. No.80 of 2010 (in O.S. No.138 of 2006) to the court below for fresh consideration since the matter can be finally decided in this proceeding. Going by the case of petitioner W.P(C) No.8669 of 2010 -: 5 :- in O.S. No.170 of 2006 the sum of Rs.7,00,000/- he claimed to have advanced to respondent No.1 is not any way connected with O.S. No.136 of 2006. But it is relevant to note that as per the contentions raised by respondent No.1 in O.S. No.170 of 2006 dispute is interlinked in that he claimed that a sum of Rs.4,00,000/- he received from the petitioner (in O.S. No.170 of 2006) is also to be adjusted towards the loss the respondents suffered on account of breach of the agreement for sale in O.S. No.138 of 2006. Hence question whether there was breach on the part of petitioner or it was on the part of respondents is certainly a matter to be decided in both the suits going by the contentions raised by the respondents. It is interesting to note that it was on W.P(C) No.8669 of 2010 -: 6 :- the representation made by respondent No.1 in this Court that the suit pending in the Sub Court, Pathanamthitta is to be tried along with O.S. No.138 of 2006 of the court of learned Sub Judge, Attingal that they applied for and obtained transfer of the suit (O.S. No.170 of 2006) to the Sub court, Attingal. This is discernible from Ext.P5, order where it is stated that “going by the pleadings in the said complaints it can be seen that the two suits arise from a single transaction of agreement for sale of the property which is situated within the jurisdiction of the Sub Court, Attingal”. In the circumstances learned Sub Judge ought to have allowed I.A. No.80 of 2010. Having regard to the facts and circumstances of the case I am inclined to allow that application. W.P(C) No.8669 of 2010 -: 7 :- Resultantly Writ Petition succeeds. Order dated 23.01.2010 on I.A. No.80 of 2010 in O.S. No.138 of 2006 is set aside. That application will stand allowed. Learned Sub Judge, Attingal is directed to dispose of the suits expeditiously. THOMAS P. JOSEPH, JUDGE. vsv