IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 1ST NOVEMBER 2010 / 10TH KARTHIKA 1932 OP(C).No. 511 of 2010(O) ------------------------ AGAINST THE ORDER DATED 15/09/2010 IN IA.2443/2010 IN OS.95/2008 of SUB COURT, OTTAPPALAM .................... PETITIONER: ------------------------------ G.P.SELVARAJ, S/O.PONNUSWAMI NAIDU, RESIDING AT NAIKKARPADI, AGALI VILLAGE, MANNARKKAD TALUK, PALAKKAD DISTRICT. BY ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE SRI.T.C.SURESH MENON SRI.JIBU P THOMAS SRI.P.S.APPU SRI.C.A.ANOOP RESPONDENTS: --------------- 1. K.SELVARAJ, S/O.KARAPPA SWAMI, RESIDING AT NAIKKARPADI, AGALI VILLAGE, MANNARKKAD TALUK, PALAKKAD DISTRICT, PIN 678 581. 2. P.C.CHACKO, S/O.KUNCHACKO, RESIDING AT KIZHAKKUMBHAGAM VILLAGE, ALUVA TALUK, ERNAKULAM DISTRICT, PIN 683 575. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 01/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.511 of 2010 --------------------------------------- Dated this 01st day of November, 2010 JUDGMENT This petition is in challenge of Ext.P5, order allowing joint trial of two suits - O.S.Nos.95 and 299 of 2008. Petitioner, defendant in both the suits is aggrieved by joint trial and has challenged the order. Learned Senior Advocate appearing for petitioner contends that causes of action involved in the two suits are separate and distinct, the contract and contracting parties are also different and hence question of joint trial does not arise though, it may be open to the court to have a simultaneous trial and disposal of the suits. 2. Short facts necessary for decision of the point raised are: Respondent No.1 filed O.S.No.95 of 2008 against petitioner for recovery of 1,89,167/- based on an alleged breach of a contract between them whereby petitioner is said to have received certain amount from respondent No.1 on granting permission to cultivate plantains in the said property. According to respondent No.1, there was total breach of contract and hence he is entitled to get back a sum of Rs.1,60,000/- with interest. While instituting that suit, property was placed under conditional attachment. While O.P(C).No.511 of 2010 : 2 : so, respondent No.2 filed O.S.No.299 of 2008, against petitioner (impleading respondent No.1 also as a party to the suit) for recovery of Rs.2,15,127/- from petitioner claiming that there was an agreement of sale of A schedule property therein executed between petitioner and respondent No.2, petitioner making respondent No.2 believe that he has absolute right, title and interest over the said property but, later respondent No.2 learned that petitioner had an agreement with respondent No.1 (referred to in O.S.No.95 of 2008). It is the case of respondent No.2 that it was suppressing the said agreement that petitioner entered into the agreement for sale with respondent No.2. Portion of the property covered by the agreement for sale and attached in O.S.No.95 of 2008 is the B schedule in O.S.No.299 of 2008. Respondent No.2 claimed that recovery of the amount as prayed for in O.S.No.299 of 2008 is necessary to lift the attachment in O.S.No.95 of 2008 as petitioner refused to get the attachment lifted. Contention of petitioner in both cases is that he has received from respondent No.1 only Rs.65,000/- and that since respondent No.1 had not complied with the terms and conditions of the agreement (to permit respondent No.1 to cultivate plantains in the suit property in O.S.No.95 of 2008), that agreement has become invalid and unenforceable. He also took up the stand that for the said reason he is not liable to ask for O.P(C).No.511 of 2010 : 3 : lifting the attachment over the B schedule in O.S.No.299 of 2008. 3. Now the question is whether court below is justified in ordering joint trial suit. No doubt, the causes of action in the suits are distinct and separate and contracts involved are also different. But, there is common question of fact involved in both the suits; whether as contended by petitioner it was only Rs.65,000/- that he had received from respondent No.1 (plaintiff in O.S.No.95 of 2008) or, it is only Rs.1,60,000/- as respondent Nos.1 and 2 allege. I must bear in mind that claim made by respondent No.2 as plaintiff in O.S.No.299 of 2008 is based on the attachment in O.S.No.299 of 2008 and the claim of respondent No.1 in that suit that petitioner received Rs.1,60,000/-. Hence in both the cases a common question of fact arises what exactly was the amount petitioner had received from respondent No.1 pursuant to agreement dated 15-07-2006?. In O.S.No.299 of 2008 if the court were to grant a decree in favour of respondent No.2 and against petitioner, certainly what exactly was the amount petitioner had received from respondent No.1, whether it was Rs.1,60,000/- or Rs. 65,000/- is relevant for consideration. For, that would have a bearing on the question as to what is the amount required to get the attachment over plaint B schedule in O.S.No.299 of 2008 lifted. Thus, though not the causes of action are the same and contracts involved in the suits O.P(C).No.511 of 2010 : 4 : are different, a common question of fact arises in both the suits. If the suits are separately tried there is possibility of divergent findings on that question of fact. In Prem Lal Nathala Vs. Chandi Prasad ( 2007(1) KLT 910) (in paragraph 16) it is stated, “The jurisdiction to consolidate arises whether there are two or more matters or causes pending in the court and it appears in court some common question of law or fact arises in both or all the suits or that the right of 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 of consolidating the suits. “ 4. Having regard to the facts and circumstances of the case I am inclined to accept the view taken by the court below that a common question of fact is involved in these cases and at any rate having regard to the contention raised by the parties it is desirable that both suits are tried and disposed of jointly. I do not find reason to interfere with the impugned order. This petition is dismissed. (THOMAS P JOSEPH, JUDGE) Sbna/-