IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 2ND JUNE 2009 / 12TH JYAISHTA 1931 WP(C).No. 12519 of 2009(O) --------------------------------------- OS.52/2008 of SUB COURT, HOSDRUG .................... PETITIONER(S): ---------------------- 1. SHIJO ANTONY, AGED 32 YEARS, S/O.PATHICKAL ANTONY, KADUMENI, CHITTARIKKAL VILLAGE, KADUMENI P.O., HOSDURG TALUK NOW RESIDING AT PUTHUPPARAMPIL HOUSE, KADUMENI P.O. CHITTARICKAL VILLAGE, HOSDURG TALUK. 2. PATHICKAL ANTONY, AGED 68 YEARS, S/O.JOSEPH, KADUMENI, CHITTARIKKAL VILLAGE, KADUMENI P.O., HOSDURG TALUK, NOW RESIDING AT PUTHUPPARAMPIL HOUSE, KADUMENI P.O.,CHITTARICKAL VILLAGE, HOSDURG TALUK, REP.BY HIS DULY AUTHORISED POWR OF ATTORNEY HOLDER SHIJO ANTONY (FIRST PETITIONER). 3. PATHIKKAL MARY, AGED 66 YEARS, W/O.ANTONY, KADUMENI, CHITTARIKKAL VILLAGE, KADUMENI P.O., HOSDURG TALUK, NOW RESIDING AT PUTHUPPARAMPIL HOUSE, KADUMENI P.O., CHITTARICKAL VILLAGE, HOSDURG TALUK, REP.BY HER DULY AUTHORISED POWER OF ATTORNEY HOLDER SHIJO ANTONY (FIRST PETITIONER). BY ADV. MR.G.RAJAGOPAL MR.P.J.ANTONY RESPONDENT(S): ------------------------- 1. SEBASTIAN JOSEPH, AGED ABOUT 58 YEARS, S/O.JOSEPH NEDUVILEMURIYIL, NEAR KHADI CENTRE, CHUDALA, CHITTHAPPILCPOIL, PARIYARAM VILLAGE, THALIPARAMBA TALUK, PARIYARAM P.O. 2. PULLANKULAM GIGI ANTONY, AGED ABOUT 49 YEARS, S/O.ANTONY THOMAS, NEELESWAR, FCI ROAD, PAROLE VILLAGE, P.O.HOSDURG, HOSDURG TALUK. WP(C).No. 12519 of 2009(O) 3. KANHIRATHAMKUNNEL K.M.PHILIP, AGED ABOUT 63 YEARS, S/O.MATHAI, RESIDING AT KIZHAKKENI, KUPPAMON, CHEEMENI VILLAGE, P.O.PETTIKUNDU, HOSDURG TALUK. R1 BY ADV. MR.GEORGE MECHERIL R2 BY ADV. MR.M.SASINDRAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/05/2009, THE COURT ON 02/06/2009 DELIVERED THE FOLLOWING: W.P.(C). NO. 12519/2009-O APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE WRITTEN STATEMENT FILED BY THE 1ST PETITIONER HEREIN O.S. NO.12 OF 2007 ON THE FILES OF THE SUBORDINATE JUDGES COURT, HOSDURG. EXT.P2: COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONERS HEREIN IN O.S. NO.43 OF 2007 ON THE FILES OF THE SUBORDINATE JUDGES COURT, HOSDURG. EXT.P3: COPY OF THE WRITTEN STATEMENT FILED BY THE 2ND AND 3RD PETITIONERS HEREIN IN O.S. NO.52 OF 2008 ON THE FILES OF THE SUBORDINATE JUDGES COURT, HOSDURG. EXT.P4: COPY OF THE I.A. NO.1040 OF 2008 IN O.S. NO.12 OF 2007 ON THE FILES OF THE SUBORDINATE JUDGES COURT, HOSDURG. EXT.P5: COPY OF THE I.A.NO.1038 OF 2008 IN O.S. NO.43 OF 2007 ON THE FILES OF THE SUBORDINATE JUDGES COURT, HOSDURG. EXT.P6: COPY OF THE I.A. NO.979 OF 2008 IN O.S. NO.52 OF 2008 ON THE FILES OF THE SUBORIDINATE JUDGES COURT, HOSDURG. EXT.P7: COPY OF THE ORDER DATED 28/02/2009 IN I.A. NO.1040 OF 2008 IN O.S. NO.12 OF 2007, I.A. NO.1038 OF 2008 IN O.S. NO.43 OF 2007 AND I.A. NO.979 OF 2008 IN O.S. NO.52 OF 2008, ALL ON THE FILES OF SUBORDINATE JUDGES COURT, HOSDURG. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.S. TO JUDGE Rs/ S.S. SATHEESACHANDRAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.12519 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 2nd June, 2009 JUDGMENT The Writ Petition is filed under Article 227 of the Constitution of India seeking the following reliefs: 1. Call for the records leading to Exhibit P7 order, set aside the same and allow Exhibits P4, P5 and P6 applications as prayed for; and 2. Issue such other writs, orders or directions that this Honourable Court may deem fit and proper in the facts and circumstances of the case. 2. Petitioners, three in number, are defendants in three suits, all pending before the Sub Court, Hosdurg. Second and third petitioners are the parents of the first petitioner. Respondents, three in number, are the plaintiffs in the respective three suits. 3. The three suits are numbered as O.S.Nos.12/07, 43/07 and 52/08. In O.S.No.12/07 filed by the first respondent as plaintiff, for recovery of money, the first petitioner is the sole defendant. In O.S.No.43/07 filed by the second respondent, for refund of the advance money allegedly paid on an agreement for sale, the petitioners, all three of them, are the defendants. In O.S.No.52/08 filed by the third respondent, for recovery of money, the second and W.P.C.No.12519/09 - 2 - third petitioners are the defendants. 4. The petitioners/defendants in the suits moved separate applications in the respective suits submitting that they have raised a common defence and to avoid precious time of the court and hardship to the parties, a joint trial of the suits may be ordered. The plaintiffs in the respective suits resisted the request for joint trial contending that the suits have arisen in respect of different and distinct causes of action and a joint trial of the suits was not proper nor feasible. The learned Sub Judge, after hearing the counsel on both sides, passed Ext.P7 order declining the prayer for joint trial. Petitioners have therefore approached this court invoking its supervisory jurisdiction urging that a joint trial of the three suits in the nature of the defence canvassed by them in the respective suits is essential, which, if not allowed, is likely to cause them severe hardship. They have raised a common defence in all the suits contending that the first petitioner who was indebted to several persons had to sign in various blank documents, and on which fictitious claims were later pressed against him by forging such documents, and, pursuant to a conciliation talk in the presence of a Panchayat member, the actual sum due to the creditors were finalised and an agreement was executed evidencing the terms arrived at in the meeting and, so much so, no claim under W.P.C.No.12519/09 - 3 - the previous documents obtained from him is maintainable, but, only such claim as agreed in the mediation. Agreement executed by the parties on mediation to substantiate the defence has to be produced and proved in the respective case. If the suits are separately tried, it may workout severe difficulties and hardship to the petitioners, according to their counsel. Impeaching the common defence set up by the petitioners in all the three suits, the learned counsel appearing for the respective respondents in the petition, who are plaintiffs in the suits, vehemently opposed joint trial of the three suits contending the matter in issue in the three suits is based on different causes of action and not substantially the same. Conditions for invoking Section 10 of the C.P.C. are also applicable for a joint trial of the suits, according the learned counsel for the respondents. Reliance was also placed on Mohammed Kunhi v. Janaki Amma (1999(3) KLT 856), in which the common similarities that are to be looked into for ordering joint trial of the suits and stay of subsequent suits under Section 10 of the C.P.C. are considered to contend that a joint trial of the three suits is not allowable. 5. Having regard to the submissions made and taking note of the facts and circumstances presented, I find the fundamental principles to be applied in considering whether a joint trial of the suits W.P.C.No.12519/09 - 4 - is essential have not been taken due note by the learned Sub Judge in declining the request made by the defendants for such trial in passing Ext.P7 order. First and foremost, it has to be pointed out, it is the concern of the court and not of the parties whether a joint trial of the suits is warranted. The power of the court to consolidate suits is not hedged by any statutory interdictions and in deciding that question whether the suits to be consolidated arise from distinct and different causes of action have no significance. In this context, it is appropriate to take note of the observations made regarding consolidation of suits in Prem Lala Nahata v. Chandi Prasad [2007 (1) KLT 910(SC) ] which reads thus: “It cannot be disputed that the court has power to consolidate suits in appropriate cases. Consolidation is a process by which two or more causes or matters are by order of the Court combined or united and treated as one cause or matter. The main purpose of consolidation is therefore to save costs, time and effort and to make the conduct of several actions more convenient by treating them as one action. The jurisdiction to consolidate arises where there are two or more matters or causes pending in the court and it appears to the court that some W.P.C.No.12519/09 - 5 - common question of law or fact arises in both or all the suits or that the rights to relief claimed in the suits are in respect of or arise out of the same transaction or series of transactions; or that for some other reason it is desirable to make an order consolidating the suits (See Halsbury's Laws of England, Volume 37, paragraph 69).l If there is power in the court to consolidate different suits on the basis that it would be desirable to make an order consolidating them or on the basis that some common questions of law or fact arise for decision in them, it cannot certainly be postulated that the trying of a suit defective for misjoinder of parties or causes of action is something that is barred by law. The power to consolidate recognised in the court obviously gives rise to the position that mere misjoinder of parties or causes of action is not something that creates an obstruction even at the threshold for the entertaining of the suit.” It is seen from the above decision of the apex court that it is the convenience of the trial that is relevant and none of the parties has any absolute right to contend that the consolidation could not be ordered. In Janardhanan Pilllai v. Kochunarayani Amma (1976 W.P.C.No.12519/09 - 6 - KLT 279) a Full Bench of this court on the question of consolidation of suits and joint trial has observed thus: “There is no provision in the Code of Civil Procedure for consolidating suits. Neverthless courts order joint trial of two or more suits for the sake of convenience, and, quite often to avoid conflicting decision. This is done by the court in the interests of justice in exercise of the inherent powers possessed by it. .................................................. Consolidation of two suits need not necessarily be by any agreement of parties, for, if a court, after hearing parties, feels that in the interests of justice it is necessary that two or more proceedings should be tried together, it is open to it order so to avoid repetition of the same evidence in the different cases or to avoid the possibility of conflicting decisions in those cases or for other justifying reasons.” 6. Though there may be much similarities as between the conditions prescribed for stay of a suit under Section 10 and consolidation of two suits, it is not possible to say that the conditions under the former have to be satisfied in consolidation of suits. In the decision referred to by the learned counsel for the respondents, i.e., W.P.C.No.12519/09 - 7 - Mohammed Kunhi v. Janaki Amma (1999(3) KLT 856) it is observed that there is something in common between stay of suit under Section 10 C.P.C. and a joint trial but it does not postulate that the principles to be considered for joint trial and stay of the suit under Section 10 of the C.P.C. are the same. The Full Bench decision of this court referred to above, i.e., Janardhanan Pillai v. Kochunarayani Amma (1976 KLT 279) spell out that in considering the question of joint trial whether the contesting parties are the same and determination of the rights of the parties arising under the two suits are the same or intimately connected, is not to be given too much significance, but, the convenience of the courts and the parties, and avoiding loss of precious time of the courts, repetition of the same evidence and possibility of conflicting decisions arising from multiplicity of suits in separate trial. 7. Without adverting to the material aspects governing the joint trial, mistakenly placing emphasis that the suits filed by different persons where cause of actions are different, and in one of the suits, O.S.No.43/07, the transaction has been admitted by the defendants and there is no scope for any trial, the learned Sub Judge dismissed the application of the petitioners for joint trial of the suits. I am afraid the reasons formulated for declining the request are not sound. W.P.C.No.12519/09 - 8 - Ext.P2 is the copy of the written statement filed by the defendants in O.S.No.43/07. I may refer to only one sentence in the written statement, as narrated in paragraph 8, copy of which is produced as Ext.P2. 'There is no wilful laches or negligence in not complying with the terms of the agreement for sale executed between the plaintiff and the defendant and they are still ready in compliance of (sic to comply) the terms and conditions in the agreement for sale.' The relief in the suit appears to be for refund of the advance amount under an agreement for sale and not for specific performance of that agreement. If that be so, the claim of refund has necessarily to be examined with reference to the defence set up by the defendants and it is not proper to conclude since the execution of the agreement for sale and advance received are admitted, that suit has to be decreed. I have pointed out the above aspects just to alert the court below that its views expressed in Ext.P7 order should not be given any significance in adjudication of the dispute involved in that suit. I make it clear that I am not expressing any opinion on the merits of the case set up by the respective plaintiffs or the defence canvassed by the defendants. 8. In the nature of the common defence set up by the defendants in all the three suits, to save the precious time of the W.P.C.No.12519/09 - 9 - court and to avoid inconvenience to the parties, duplicity of the same evidence in the three suits and examination of common witnesses separately in the suits, it is only just and proper to consolidate the three suits for joint trial and disposal. I leave it to the learned Sub Judge to decide the case which is to be treated as the main case in which evidence is to be let in by the parties. Ext.P7 order is set aside directing the learned Sub Judge to consolidate the three suits to have a joint trial, and for disposing them expeditiously, untrammelled by any of the observations made under Ext.P7 order, giving the cases top priority for hearing. The Writ Petition is disposed as above. srd S.S. SATHEESACHANDRAN, JUDGE