IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA WEDNESDAY, THE 7TH SEPTEMBER 2011 / 16TH BHADRA 1933 WP(C).No. 6315 of 2010(O) ------------------------- OP(TP).58/2009 of D.C & SESSIONS COURT, TRIVANDRUM OS.13/2007 of PRL.SUB COURT, TRIVANDRUM .................... PETITIONER(S): --------------- SIRAJUDEEN, S/O.SHAHUL HAMEED, NOOR MAHAL, T.C.31/1412(1), ENACHAKKAL, BYPASS ROAD, CHACKAT, PETTAH, THIRUVANANTHAPURAM. BY ADV. SRI.VPK.PANICKER RESPONDENT(S): --------------- 1. RAJAMANI, S/O.NEELAKANTAN, TC.30/112, BANK ROAD, KODAVOOR, ANAYARA.PO, KADAKAMPALLY VILLAGE, THIRUVANANTHAPURAM. 2. VALSALA, W/O.RAJAMANI,TC.30/112, BANK ROAD, KODAVOOR, ANAYARA.PO, KADAKAMPALLY VILLAGE, THIRUVANANTHAPURAM. 3. R.MINIKUMARY, W/O.SREEKANDAN NAIR, RESIDING AT SHIVLEELDEVI NAGAR, PEROOORKADA PO,THIRUVANANTHAPURAM. ADV. SRI.WILSON URMESE FOR R3 SRI.M.R.ANANDAKUTTAN FOR R2 & 4 SMT.M.A.ZOHRA FOR R2 & 4 SRI.R.S.MADHU FOR R2 & 4 SRI.MAHESH ANANDAKUTTAN FOR R2 &4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 6315 of 2010(O) - 2 - APPENDIX PETITIONER(S) EXHIBITS : EXT.P1 TRUE COPY OF THE AGREEMENT FOR SALE DATED 20.12.2006 BETWEEN THE PETITIONER AND RESPONDENTS 1 & 2. EXT.P2 TRUE COPY OF THE PLAINT IN O.S.341/2007 OF THE Ist ADDIL. SUB COURT, THIRUVANANTHAPURAM. EXT.P3 COPY OF THE WRITTEN STATEMENT IN O.S.341/2007 OF Ist ADDIL. SUB COURT, THIRUVANANTHAPURAM. EXT.P4 TRUE COPY OF PLAIN IN O.S.13/2007 OF THE PRINCIPAL SUB COURT, THIRUVANANTHAPURAM. EXT.P5 TRUE COPY OF THE ORDER OF ATTACHMENT PASSED IN I.A. 98/07 IN O.S.13/2007 ON THE FILE OF THE PRINCIPAL SUB COURT, THIRUVANANTHAPURAM. EXT.P6 TRUE COPY OF THE WRITTEN STATEMENT FILED BY DEFENDANT IN O.S.13/2007 ON THE FILE OF THE PRINCIPAL SUB COURT, THIRUVANANTHAPURAM. EXT.P7 TRUE COPY OF THE WRITTEN STATEMENT FILED BY ADDL 2ND DEFENDANT IN O.S.13/2007 OF THE PRINCIPAL SUB COURT, THIRUVANANTHAPURAM. EXT.P8 TRUE COPY OF THE PETITION IN O.P.(T.P) NO.58/2009 FILED BEFORE THE DISTRICT COURT, THIRUVANANTHAPURAM. EXT.P9 TRUE COPY OF THE ORDER DATED 30/11/2009 IN O.P.(T.P) NO.58/2009 BEFORE THE DISTRICT COURT, THIRUVANANTHAPURAM. RESPONDENTS' EXHIBITS : NIL // TRUE COPY // P.A. TO JUDGE. sou. K. HEMA, J ---------------------- W.P.C.No.6315 OF 2010 ----------------------------------- Dated 7th September, 2011 J U D G M E N T A petition was filed by petitioner, as Ext.P8 for transfer of O.S.no.341 of 2007 on the file of First Additional Sub Court to Principal Sub Court, where O.S.no.13 of 2007 is pending. Learned District Judge dismissed the petition as per Ext.P9 and the said order is challenged in this O.P. 2. On hearing both sides, I find that admittedly O.P.no.341 of 2007 is for specific performance of an agreement for sale of a property. The said property is attached, as per Ext.P5. O.S.no.13 of 2007, is a suit filed on the basis of a promissory note. According to petitioner's counsel, after execution of an agreement for sale, a suit as O.S.no.13 of 2007 was filed on the strength of a promissory note and the property which is agreed to be sold was attached, as per order in the said suit. The said suit is a collusive suit (but this fact is disputed). It is also submitted that petitioner paid more than Rs.10,00,000/- as advance sale consideration to WPC. No.6315/10 2 the respondent. 3. On hearing both sides, I find that even though cause of action is different in both the suits, the trial by same court will be essential in the interest of justice to appreciate facts and circumstances of both the cases, especially in the light of allegation that O.S.13 of 2007 is a collusive suit. Both sides submitted that there was no objection in transferring the suit, while the matter was taken up before the District Court in O.P. (T.P)no.58 of 2009. But learned District Judge formed the opinion that joint trial is not possible and dismissed the petition. 4. On hearing both sides, I am satisfied that though joint trial is not possible, I find that in the nature of the dispute in both the cases, it is only just and proper that both the suits are tried and disposed of by the same court. Hence O.S.no.341 of 2007 pending in First Additional Sub Court, Thiruvananthapuram is to be transferred to the Principal Sub Court Thiruvananthapuram, where O.S.no.13 of 2007 is pending. Hence the following order is passed: 1. O.S.no.341 of 2007, now pending before the First Additional Sub Court Thiruvananthapuram is transferred to principal Sub Court Thiruvananthapuram, where O.S.no.13 of 2007 is pending. WPC. No.6315/10 3 2. First Additional Sub Court Thiruvananthapuram is directed to forward the records in O.S.no.341 of 2007 to the Principal Sub Court forthwith. This petition is allowed. Sd/- K. HEMA, JUDGE. Sou. // True copy // P.A. to Judge