Ahammed Rawther and others v Kalamala Muslim Palli and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** **THURSDAY, THE 16TH DAY OF JUNE 2016/26TH JYAISHTA, 1938** **OP(C).No. 680 of 2016 (O) -------------------------** **OS 265/2011 OF SUB COURT, PATHANAMTHITTA** **....** **PETITIONER(S):** - **-------------** **1. AHAMMED RAWTHER, AGED 70 YEARS, ABBANI RAWTHER, KONNAYIL VEEDU, MANNADI MURI, KADAMPANADU VILLAGE, PIN: 691 552.** **2. SUDHEER T.** - **S/O.THANKAPPAN RAWTHER, PADINJARE UDAYAM MUTTATHU THEKKEPURAYIL, MANNADI MURI, KADAMPANADU VILLAGE, PIN - 691 552.** **3. JALAL, AGED 50 YEARS,** - **S/O.MEERAKANI RAWTHER, UDAYAMUTTATHU THEKKEPURYIL, MANNADI MURI, KADAMPANADU VILLAGE, PIN: 691 552.** **4. SAINUDEEN, AGED 52 YEARS,** - **S/O.MEERAKKUTTY RAWTHER, PULLIPARA PADINJATTETHIL VEEDU MANNADI KALAYIKKU KICHAKKU KADAMPANADU VILLAGE, PIN: 691 552. 52** **5. BASHEER RAWTHER, AGED 60 YEARS, S/O.KODUMON, RAWTHER, PUTHENPURAYIL, MANNADI, KADAMPANADU.** **6. SHAMSUDHEEN, AGED 70 YEARS, MULLOOR PUTHEN VEEDU MANNADI KALAKICHAKKU MURI,DESAKKALLUMOODU, KADAMPANADU VILLAGE, PIN: 691 552.** **7. SUNIL H., AGED 38 YEARS, S/O.HAMEEDUKUTTY, ANILA BHAVAN, MANNADI MURI, KADAMPANADU VILLAGE.** **msv/** **-2-** **-2-** ## **OP(C).No. 680 of 2016 (O)** ## **-------------------------** **8. BADARUDHEEN, AGED 40 YEARS, S/O.MUHAMMED MUSTHAFA, SHABNA MANSIL, VERKALA KUNNATHU VILLAGE.** **BY ADVS.SMT.T.S.MAYA (THIYADIL) SMT.K.A.SUNITHA** ## **RESPONDENT(S):** - **--------------** **1. KALAMALA MUSLIM PALLI, ELANGAMANGALAM MURI, ENATHU VILLAGE, ADOOR TALUK, PIN: 691 526.** **2. BASHEER RAWTHER, AGED 64 YEARS, AWAANI RAWTHER, SHEEJA MANZIL, KADAMPANADU VILLAGE, PIN: 691 552.** **3. MEERASAHIB RAWTHER, AGED 57 YEARS, S/O.MUHAMMED KANNU RAWTHER, KIZHAKKE UDAYAMUTTATHU, MANNADIPADINJARU THACHATHU MURI, KADAMPANADU VILLAGE, ADOOR, PIN: 691 552.** **4. MAJEED RAWTHER, AGED 60, S/O.AWWANI RAWTHER, PLAMOOTTIL HOUSE, MANNADIPADINJARU KICHKKKE MURI, KADAMPANADU VILLAGE, PIN: 691 552.** **5. JALALUDHEEN RAUTHER, AGED 47 YEARS, S/O.SULAIMAN RAUTHER, R/AT UDAYAMUTTATHU KICHAKKETHIL, MANNADITHACHATHU MURI, KADAMPANADU VILLAGE, ADOOR TALUK, PIN: 691 552.** **6. SHAJI, AGED 45 YEARS, S/O.MAMMUKKA RAWTHER, R/AT SHAJI MANZIL, PUTHENAMBALAM IVARKALA, KUNNATHUR TALUK, KOLLAM DISTRICT 691 005.** **7. THANKAPPA RAWTHER, S/O.MUHAMMED KUNJU RAWTHER, THANAL VEEDU, EDAPPALAYAM P.O., ARIYANKAVU - 691 008.** **8. THANKAPPA RAWTHER, AGED 80 YEARS, S/O.AVVANI RAWTHER, KEECHETHIL VEEDU, MANNADITHACHATHU MURI, KADAMPANADU VILLAGE, ADOOR TALUK - 691 552.** **Msv/** **-3-** **-3-** ## **OP(C).No. 680 of 2016 (O)** ## **-------------------------** ## **9. SHAMSUDEEN RAWTHER** - **S/O.AWANI RAWTHER, SHYLALAYAM VEEDU, MANNADI PADINJARU THAZHATHU MURI, KADAMPANADU VILLAGE - 691 552.** **10. HASSAN RAWTHER, AGED 72 YEARS, RTD. TEACHER, S/O.KOCHU THAMPI RAWTHER, (CRECENT VIEW),KALEECKAL, KONNAMANKARA MURI, ADOOR VILLAGE - 691 552.** **11. ALIKKUTTY RAWTHER, AGED 64 YEARS, S/O.WAWA RAWTHER, (EX-SERVICE), KOOTANGALVILAYIL VEEDU, ELANGAMANGLAM MURI, ENATHU VILLAGE - 691 558.** **12. SALIM, AGED 57 YEARS, S/O.WAVA RAWTHER, MANNADI THACHATHU MURI, KADAMPANADU VILLAGE, ADOOR - 691 555.** **13. SHAJAHAN RAWTHER, S/O.BAVA RAWTHER KURAMBELIL VEEDU, MANNADITHACHATHU MURI - 691 558.** **14. RASHEED RAWTHER** - **S/O.WAVA RAWTHER, FATHIMA MANZIL, MANNADI THACHATHU MURI - 691 558.** **15. SHANAVAS,** - **S/O.THANKAPPA RAWTHER, KIZHAKKETHIL VEEDU, MANNADI THAZHATHU MURI, KADAMPANADU VILLAGE, ADOOR TALUK, PIN; 691 552.** **16. SHANAVAS,** - **S/O.SHAMSUDHEEN RAWTHER, SHYLALAYAM VEEDU, MANNADI THACHATHU PADINJARU MURI, KADAMPANADU VILLAGE, ADOOR TALUK, PIN: 691 552.** **17. KAMARUDEENS,** - **S/O.THANKAPPA RAWTHER, PARAYIL KUZHIYIL VEEDU EDAPPALAYAM MURI, ARIYANKAVU VILLAGE, ADOOR TALUK, PIN: 691 552.** **18. BADARUDEEN, S/O.THANKAPPA RAWTHER, PARAYIL KUZHIYIL VEEDU, EDAPPALAYAM MURI, ARIYANKAVU VILLAGE, ADOOR TALUK, PIN; 691 552.** **msv/** **-4-** **-4-** **OP(C).No. 680 of 2016 (O)** ## **-------------------------** ## **19. SHAMDUDEEN** **S/O.THANKAPPA RAWTHER, PARAYIL KUZHIYIL VEEDU, EDAPPALAYAM MURI, ARIYANKAVU VILLAGE, ADOOR TALUK - 691 552.** ## **20. BILAL** **S/O.SALIM RAWTHER, BAVA HOUSE MANNADI THACHATHU PADINJARU MURI KADAMPAANADU VILLAGE, ADOOR TALUK - 691 552.** ## **21. AJEEM OOTTUKADAVILAYIL** **ELANGAMANGALAM MURI, ENATHU VILLAGE - 691 558. MANNADI THJACHATHU, KADAMPANADU VILLAGE, ADOOR TALUK - 691 558.** ## **22. INSAMAM, KURUMBELIL** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 16-06-2016, ALONG WITH OP(C) 680/2016 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **msv/** ## **OP(C).No. 680 of 2016 (O) --------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-----------------------** - **P1: COPY OF OS 265/2011 PENDING BEFORE THE SUB COURT PATHANAMTHITTA FILED BY THE PETITIONERS** - **P2: COPY OF THE WRITTEN STATEMENT IN OS 265/2011 FILED BY RESPONDENTS** - **P3: COPY OF OS 272/2012 PENDING BEFORE THE SUB COURT PATHANAMTHITTA FILED BY THE 10TH RESPONDENT** - **P4: COPY OF IA NO.20/2016 IN EXT.P1 SUIT FILED BY THE PETITIONERS FOR JOINT TRIAL** - **P5: COPY OF FORMAL OBJECTION FILED BY EXT.P4 JOINT TRIAL PETITION** - **P6: ORDER PASSED BY THE SUB COURT PATHANAMTHITTA IN IA 20/2016 JOINT TRIAL PETITION** ## **RESPONDENT(S)' EXHIBITS:** ## **------------------------** ## **NIL** ## **//TRUE COPY//** **P.S.TO JUDGE** **Msv/** “CR” ## **K. HARILAL, J.** **= = = = = = = = = = = = = = = = = = = =** **O.P.(C) Nos. 680 & 681 of 2016** **- - - - - - - - - -- - - - - - - - - - - - - -** Dated this the 16th day of June, 2016 ## **J U D G M E N T** The petitioners in Original Petition(Civil) No.680 of 2016 are the additional defendant Nos.20 - 27 and the respondents are plaintiffs and other defendants, in Original Suit No.265 of 2011 of the Sub Court, Pathanamthitta. The suit is filed, praying for the settlement of a new scheme with respect to the administration of property owned by the 1[st] respondent, Mosque. The petitioner in Original Petition(Civil) No.681 of 2016 is the plaintiff in Original Suit No.272 of 2012 of the aforesaid court and the respondents are defendants therein. This suit is filed for declaration of title with respect to the property owned by the Mosque, ignoring the partition deed executed with respect to **O.P.(C) Nos. 680 & 681 of 2016** ## **-: 2 :-** some portion of the aforesaid property. 2. The petitioners in Original Petition(Civil) No.680 of 2016, who are the additional defendants in Original Suit No.265 of 2011, filed Interlocutory Application No.20 of 2016 in Original Suit No.265 of 2011, seeking joint trial with Original Suit No.272 of 2012 of the same court. But, the trial court dismissed the said application, by Ext.P6 order in Original Petition(Civil) No.680 of 2016. Similarly, the petitioner in Original Petition(Civil) No.681 of 2016, who is the plaintiff in Original Suit No.272 of 2012 filed Interlocutory Application No.42 of 2016 in Original Suit No.272 of 2012, seeking joint trial with Original Suit No.265 of 2011. But, the trial court dismissed the said application, by Ext.P5 order in Original Petition (Civil) No.681 of 2016. Thus, legality and correctness of the reasonings, whereby the applications filed in both ## **O.P.(C) Nos. 680 & 681 of 2016** ## **-: 3 :-** suits, Original Suit Nos.265 of 2011 and 272 of 2012, for joint trial, stand dismissed, are challenged in these Original Petitions (Civil). 3. Heard the learned counsel for the petitioners and the learned counsel appearing for the respondents. 4. On a reading of the impugned orders under challenge, it appears that the reasons, whereby the applications stand rejected, are one and the same, though orders are passed separately. _Prima facie,_ this Court is not satisfied with the manner, in which the trial court has considered an application, seeking joint-trial of two suits. The sole consideration of the trial court was confined to the question, whether the parties are same in both suits, only. Apparently, the court below omitted to consider the circumstances, which require to be considered in an application, seeking joint-trial. **O.P.(C) Nos. 680 & 681 of 2016** ## **-: 4 :-** At the first blush, it may appear that convenience of the parties, where the parties are same in both suits, is the main ground for a joint-trial; but legally it is not correct. 5. It is true that there is no specific provision in the Code of Civil Procedure, 1908 _(hereinafter referred to as 'the C.P.C.'),_ describing the circumstances under which a jointtrial petition can be allowed. But, the circumstances under which joint-trial petition can be allowed derives from Order I Rules 1 and 3 of the C.P.C. That apart, the question to be essentially considered is, whether the issues framed in both suits are intricately connected with each other and if separate trial is conducted, whether there is any chance of conflicting decisions, on the issues separately framed in both suits? 6. Another fact has to be considered is, **O.P.(C) Nos. 680 & 681 of 2016** ## **-: 5 :-** whether the evidence to be adduced in both suits are common and the subject matter of the suits are same. Even if, the reliefs sought for are different, if the issues framed in one suit would come ancillary or corollary to the issue framed in the other suit, certainly, both issues must be tried together. Otherwise, if the main issue framed in one suit is determined earlier, the issue which comes ancillary to the main issue in the subsequent suit would become infructuous or redundant. If any of the parties in the subsequent suit is not a party in the earlier suit, he will miss an opportunity to address the main issue, which would render the ancillary issue redundant or covered. Therefore, the nature of issues are the main criteria and the possibility to arrive at conflicting decisions and the possibility, which would make the other issue in the other suit redundant or covered, if tried separately, are also **O.P.(C) Nos. 680 & 681 of 2016** ## **-: 6 :-** the circumstance under which a joint-trial can be allowed. 7. This Court has considered the general circumstances under which joint-trial can be allowed in _**Navabharat Vignan Trust and Others v. Nasihudeen and Others**_ [2013(1)KHC 1], which reads as follows: _“Circumstances requisite to allow joint-trial are (1) A common question of law or common question of fact must arise from all such suits and (2) In all such suits, the right to relief must be in respect of or arising out of same act or transaction or same series of acts or transactions (3) All parties in the suit which is sought to be transferred must be present in the suit with which joint-trial is sought for. Therefore, the question to be considered in an application for joint-trial are whether these is any common question of law or fact in all such suits and whether there is any common question of law or fact in all such suits and whether the act or transaction which gives rise to a right to relief is common in all such suits.”_ 8. Needless to say, in the instant case, the trial court has not considered the circumstances under which joint-trial can be allowed. The court **O.P.(C) Nos. 680 & 681 of 2016** ## **-: 7 :-** below has considered the issue in a superficial manner, confining to the presence of the parties in both suits, only. Therefore, this Court is inclined to set aside the impugned orders Exts.P5 and P6, respectively in both Original Petitions and I do so. The matter is remitted back to the trial court for fresh consideration, in the light of the observations made above and judicial precedents laid down by this Court and the order shall be passed, at the earliest. These Original Petitions (Civil) are disposed of accordingly. DST Sd/- **K. HARILAL,** //True copy// P.A. To Judge **JUDGE**