IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN MONDAY, THE 19TH JANUARY 2009 / 29TH POUSHA 1930 WP(C).No.1956 of 2009 (G) --------------------------------- T.O.P.352/2008 of DISTRICT COURT, THRISSUR OS.1462/2008 of I ADDL.SUB COURT, THRISSUR .................... PETITIONERS: ----------------- 1. SATHEESHKUMAR, AGED 31, S/O.KARUNAKARAN NAIR, VELUTHEDATHKARAYIL, MUNDATHICODE DESOM, THALAPPILLY TALUK, THRISSUR DISTRICT. 2. PREEJA, W/O.SATHEESHKUMAR, VELUTHEDATHKARAYIL, MUNDATHICODE DESOM, THALAPPILLY TALUK, THRISSUR DISTRICT. BY ADV. SRI.G.SREEKUMAR (CHELUR) SMT.PREETHY KARUNAKARAN RESPONDENT: --------------- PUSHPA, W/O.THUNDATHIL SUDHAKARAN, MUNDATHICODE DESOM, THALAPPILLY TALUK, THRISSUR DISTRICT. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ W. P. C. No.1956 of 2009 ------------------------------------------------ Dated this the 19th day of January, 2009 JUDGMENT The petitioners are the defendants in O.S.460/07 on the file of the Munsiff's Court, Wadakkancherry wherein the respondent prayed for a decree for recovery of possession of the scheduled property in possession of the petitioners under an agreement for sale paying only an advance of Rs.25,000/- from out of the total consideration of Rs.50,000/-, it is submitted. 2. It is further submitted that the second petitioner has filed a suit as O.S.1462/08 before the Sub Court, Thrissur for specific performance of the agreement for sale. The petitioners filed a petition under Section 24 of the C.P.C before the District Court for transfer of O.S.460/07 pending on the file of the Munsiff's Court, W. P. C. No.1956 of 2009 -2- Wadakkancherry to the First Additional Sub Court, Thrissur for joint trial with O.S. 1462/08, filing Transfer O.P.352/08. The District Judge vide Ext.P3 order dismissed the transfer prayed for, for the reason that the Transfer Petition has been filed on the eve of the date on which the suit O.S.460/07 stood posted for trial in the special list and that the suit O.S.1462/08 has been filed with a view to protract the trial of O.S.460/07. The District Judge has observed while dismissing the transfer petition that the claim for recovery of possession on the strength of title even if disposed of on merits will not operate as res judicata in O.S.1462/08 for specific performance and disposal of the two suits separately will not cause any hindrance to the execution of the decree that may be passed in O.S.1462/08. He also observes that W. P. C. No.1956 of 2009 -3- the issue involved in both the suits are not the same and further that O.S.1462/08 has been filed belatedly. 3. Counsel for the petitioners submits that in O.S.1462/08 the respondent has filed written statement; that issues are not framed and that the petitioners herein have to pay the balance court fee also. The petitioners shall see to it that all these is done positively within two weeks from today. Petitioners shall also deposit the balance sale consideration of Rs.25,000/- in the court below within the said two weeks in O.S.1462/08. If these are complied with within the said two weeks O.S.460/07 now pending on the file of the Munsiff's Court, Wadakkancherry shall stand transferred to the Sub Court, Thrissur. The question as to whether a joint trial of the two suits is to W. P. C. No.1956 of 2009 -4- be had is for the Sub Judge dealing with the two cases to decide. The trial of O.S.460/07 shall stand stayed for a period of two weeks from today. If on the expiry of the said two weeks, the petitioners produce sufficient evidence before the Munsiff to show that they have paid the balance court fee in O.S.1462/08 and have also deposited the balance sale consideration of Rs.25,000/- to the credit of O.S.1462/08 within the said two weeks namely on or before 02/02/09, the Munsiff shall transmit records in O.S.460/07 to the Sub Court, Thrissur and the Sub Judge shall receive the suit and pass appropriate orders regarding joint trial if at all a petition is moved in that behalf by the petitioner within one month from today. If any of these conditions are not complied with the Munsiff, Wadakkancherry shall proceed with trial of W. P. C. No.1956 of 2009 -5- O.S.460/07 and the transfer prayed for shall stand rejected. On no account shall any extension of time be granted to the petitioners to deposit the amounts ordered as aforesaid or to move for joint trial. 4. This Writ Petition is allowed and is disposed of with the above directions and being without notice to respondents the petitioners shall serve a copy of this judgment to the counsel for the respondent/ plaintiff in the court below and also produce a copy of this judgment both in the Munsiff's Court and in the Sub Court in the concerned suits forthwith. 5. Issue copy of this judgment to the counsel for the petitioners urgently. K.P.BALACHANDRAN, JUDGE kns/-