K.S. Joshy v. Mini and Others

1 OP(C) No.2455 of 2022 # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` TUESDAY, THE 31[ST] DAY OF JANUARY 2023 / 11TH MAGHA, 1944 ``` ## **`OP(C) NO. 2455 OF 2022`** # **`AGAINST THE ORDER/JUDGMENT IN TOP 117/2021 OF THE` Second Additional District Judge, Ernakulam** ## **`PETITIONER/S:`** ``` K.S.JOSHY,AGED 70 YEARS,S/O.SANKUNNY,RESIDING AT 2C, LOTUS APARTMENT, D.H ROAD, KOCHI-16 BY ADV PEEYUS A.KOTTAM ``` ## **`RESPONDENT/S:`** ``` 1. MINI,AGED 55 YEARS, W/O.UPENDRA PRASAD, CHULLIKKATT HOUSE, NEENDOORMURI, VADAKKEKKARA VILLAGE, PARAVUR, ERNAKULAM -683 513. ``` ``` 2.VIMAL RAJ, AGED 35, S/O.UPENDRA PRASAD, CHULLIKKATT HOUSE, NEENDOORMURI, VADAKKEKKARA VILLAGE, PARAVUR, ERNAKULAM -683 513 ``` ``` 3.C.J.SHIJU, S/O.JOY, AGED 36 YEARS, RESIDING AT CHULLIKKAL HOUSE, ALAMTHURUTHMURI, VADAKKEKKARA PIN-683 516. ``` ``` 4.K.T GOPI, S/O.THILAKAN, AGED 44 YEARS, RESIDING AT KATTIPARAMBIL HOUSE, MACHANTHURUTH, VADAKKEKARA P.O, PIN 683 522. ``` ``` 5.REMADEVI, W/O.K.T GOPI, AGED 42 YEARS, RESIDING AT KATTIPARAMBIL, MADAPLAMTHUTUTH MURI, MOOTHAKUNNAM VILLAGE, PIN 683 516. ``` ``` 6.P.K SHOBHANA, W/O.MOHANAN, AGED 59 YEARS RESIDING AT KALAVAMPARA HOUSE, MOTHAKUNNAM VILLAGE, MOOTHAKUNNAM MURI, PIN 683 516. ``` ``` 7.SUSHILA JOSHY, AGED 48, W/O.JOSHY, RESIDING AT KAYITHAKADU HOUSE, VADAKKEKARA VILLAGE, MACHAMTHURUTH MURI, VADAKKEKKARA P.O, PARAVUR, ERNAKULAM, PIN 683 522. ``` 2 OP(C) No.2455 of 2022 ``` 8.JOSHY, AGED 52 YEARS, S/O.VELAYUDHAN, RESIDING AT KAYITHAKADU HOUSE, VADAKKEKARA VILLAGE, MACHAMTHURUTH MURI, VADAKKEKKARA P.O, PARAVUR, ERNAKULAM – 683 522. ``` ``` 9.GREESHMA T.S, AGED 27 YEARS, W/O.JUDO, RESIDING AT PUTHENVEETTIL HOUSE, MOOTHAKUNNAM VILLAGE, VAVAKKADMURI, PIN 683 522. ``` ``` 10.JUDO.P.S, AGED 31 YEARS, S/O.SAJEEV, RESIDING AT PUTHENVEETTTIL HOUSE, MOOTHAKUNNAM VILLAE, VAVAKKAD MURI, PIN-683 522. ``` ``` 11.C.V.USHA, W/O.SAJEEV, AGED 49 YEARS, RESIDING AT PUTHENVEETTIL HOUSE, MOOTHAKUNNAM VILLAE, VAVAKKAD MURI, PIN-683 522. ``` ``` 12.A.B NIBIN, S/O.BALAN, AGED 28 YEARS, RESIDING AT AMBATTHPARAMBIL HOUSE, MACHANTHURUTH, VADAKKEKKARA P.O, PIN -683 522. ``` ``` 13.JALAJA, AGED 52, W/O.KAILASAN, KATTIPARAMBIL HOUSE, VADAKKEKKARA, MOOTHAKUNNAM P.O, ERNAKULAM. ``` ``` 14.SHYAM MOHAN, AGED 30 YEARS, S/O.MOHANAN THALAPARAMBIL HOUSE, MACHANTHURUTH, VADAKKEKKARA P.O, PIN -683 522. ``` ``` 15.SUNILKUMAR, AGED 47 YEARS, S/O.DASAN, THONATHIL HOUSE, CHTTATTUKARA, ALAMTHURUTHMURIYIL, VADAKKEKKARA P.O, PIN -683 522. ``` ``` 16.SUNITHA, AGED 39 YEARS, W/O.SUNILKUMAR, THONATHIL HOUSE, CHTTATTUKARA, ALAMTHURUTHMURIYIL, VADAKKEKKARA P.O, PIN -683 522. ``` ``` 17.C.G. BIBIN(JIBIN) AGED 30 YEARS, S/O.GOPI, PADATHERI HOUSE, KATTATHURUTH, VADAKKEKKARA P.O, NEAR NAMBYATH TEMPLE, PIN 683 522. ``` ``` 18. P.C.RANJAN, AGED 33 YEARS, S/O.CHANDRAN, PATHIYEZHATH HOUSE, EZHIKARA PANCHAYAT, EZHIKARA VILLAGE, THEKKUMBHAGAM MURI, EZHIKKARA P.O, ERNAKULAM PIN 683 513. ``` ``` 19.JOY, AGED 63 YEARS, S/O.MATHEW, THUNDATHILVEETTIL, KUNJITHAI PO, VADAKKEKKARA VILLAGE, PARAVUR TALUK, ERNAKULAM- 683 522. ``` 3 OP(C) No.2455 of 2022 ``` 20.JIBY, AGED 34 YEARS, S/O.THUNDATHILVEETTIL, KUNJITHAI PO, VADAKKEKKARA VILLAGE, PARAVUR TALUK, ERNAKULAM- 683 522. ``` ``` BY ADVS. HAJARA.M.K K.K.MOHINUDHEEN(K/188/1980) ``` ``` THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 31.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 4 OP(C) No.2455 of 2022 ## **C.S DIAS,J.** **--------------------------OP(C) No.2455 of 2022** **----------------------------Dated this the 31[st] day of January, 2023.** ## **JUDGMENT** The original petition is filed challenging Ext P8 order passed in T.O.P No.117/2021 by the Court of the Second Additional District Judge, Ernakulam, which was filed by the petitioner against the respondents. 2. The factual matrix leading to Ext P8 order, in a nutshell, are: the petitioner has filed OS Nos.218, 219, 220, 244, 245 and 246 of 2018 (for brevity referred as ‘latter suits’) before the Court of the Munsiff, North Paravur, against the respondents. The petitioner has also filed OS No.39/2018 (‘former suit’) before the Court of the Principal Subordinate Judge, North Paravur, against the respondents 1 and 2. In the latter suits, the petitioner has sought for a decree for recovery of money against the respondents and in the former suit, the petitioner has, inter alia, sought for a decree for specific 5 OP(C) No.2455 of 2022 performance as against the respondents 1 and 2. The petitioner’s case is that, he had entered into an agreement for sale on 26.5.2015 with the respondents 1 and 2 to develop a property having an extent of 83.300 cents. He had expended Rs.20,00,000/- to develop the property. He had sold several plots in the said property to third parties. The respondents 1 and 2, in flagrant violation of the agreement, have sold seven plots to the respondents 3 to 20 compelling the petitioner to file the former suit. The latter suits are filed against the respondents 1 and 2 and the purchasers of the seven plots, namely, respondents 3 to 20 for recovery of money of the balance sale consideration. As the subject-matter in all the suits pertain to the same property covered by the agreement for sale dated 26.5.2015, it is just and expedient that the suits are consolidated and jointly tried by the same Court. Hence, the petitioner filed TOP No.117/2021 before the court below to transfer the latter suits pending before the Court of the Munsiff to the 6 OP(C) No.2455 of 2022 Court of the Principal Subordinate Judge, where the former suit is pending, so that all the suits can be consolidated and jointly tried, which would avoid multiplicity of proceedings, conflict of decisions and save precious judicial time. But, the learned District Judge, by the impugned Ext P8 order, has dismissed the transfer petition on the grounds that the former suit is not of the same nature as that of the latter six suits, the parties are different and agreements are also different. Ext P8 is patently wrong and unsustainable in law. Hence the original petition. 3. The respondents 1 and 2 have filed an objection denying the allegations in the original petition. They have contended that other than for the petitioner and the respondents 1 and 2, the parties in latter six suits are different, agreements are different, and the reliefs are also different. Furthermore, the suits are not complementary to each other, issues and the evidence are also different. Therefore, if the suits are transferred 7 OP(C) No.2455 of 2022 to one Court, it would lead to unnecessary intertwining of facts and law. Hence the original petition may be dismissed. 4. Heard; Sri.Peeyus A.Kottam, the learned counsel appearing for the petitioner and Smt.M.K Hajara, the learned counsel appearing for the respondents 1 and 2. Service is complete on the other respondents. 5. The short point is, is there any error in Ext P8 order. 6. It is trite that an order of transfer under Sec.24 of the Code of Civil Procedure is purely discretionary in nature. 7. The principal ground for filing the transfer petition before the court below was for the consolidation and joint trial of all the cases, so as to avoid multiplicity of proceedings, conflict of decisions, convenience of the parties and to save precious judicial time. 8. This Court in **Joseph vs. Benny J.Aricatt** [2021 (1) KHC 132] has emphatically held that it is not 8 OP(C) No.2455 of 2022 necessary that all the issues and questions have to be the same to order joint trial. Instead, it is sufficient that some of the issues and a part of the evidence are common. And, the main purpose for ordering the consolidation of cases is to save time, effort and cost, even though there is no such provision in the Code of Civil Procedure. 9. OS No.39/2018 is filed by the petitioner against the respondents 1 and 2, inter alia, for a decree of specific performance of the agreement for sale dated 26.5.2015. The petitioner's case is that, during the validity of the said agreement, the respondents 1 and 2 committed breach of contract and sold the properties covered by the said agreement to respondents 3 to 20. Therefore, now the petitioner is entitled to the differential amount of the sale consideration. For the said purpose, the petitioner filed the latter six suits, wherein the respondents 1 and 2 are also parties. 10. Thus, all the suits revolve on the agreement for sale and its enforcement, which is the subject-matter in 9 OP(C) No.2455 of 2022 the former suit. If the petitioner succeeds in former suit, necessarily and consequentially, he will succeed in the latter suits. Therefore, the seven suits, according to me, are intrinsically and inextricably intertwined. If the suits are not tried by the same Court there is every likelihood of conflict of judgments and unnecessary waste of precious judicial time. 11. The court below, on an erroneous consideration of the fact that the sale deeds were not executed by the respondents 1 and 2 in favour of the respondents 3 to 20, has rejected the prayer for transfer of the proceedings. 12. The attention of this Court is drawn to the averments in Ext P2 to P7 plaints, which undoubtedly substantiate that the sale deeds were registered. Hence, the finding of the court below on the said aspect is incorrect. 13. On a conspectus of the law, the pleadings and materials on record and in view of the aforesaid findings, I am of the definite view, especially that the petitioner 10 OP(C) No.2455 of 2022 and the respondents 1 and 2 are parties in all the seven suits and the dispute in the seven suits revolves on the ultimate decision in OS No.39/2018, the seven suits have to be tried by the same Court, which will subserve the ends of justice, avoid multiplicity of proceedings and avoid conflicting decisions. 14. Thus, I am inclined to exercise the power of superintendence of this Court under Article 227 of the Constitution of India and Section 24 of the Code and order the withdrawal and transfer of the six suits from the Court of the Munsiff, North Paravur to the Court of the Principal Subordinate Judge, North Paravur. Resultantly, I allow the original petition as follows: i) Ext P8 order is set aside. ii) TOP No.117/2021 is allowed. iii) OS Nos. 218, 219, 220, 244, 245 and 246 of 2018 are withdrawn from the Court of the Munsiff, North Paravur and transferred to the 11 OP(C) No.2455 of 2022 Court of the Principal Subordinate Judge, North Paravur. iv) The petitioner would be at liberty to move the Court of the Principal Subordinate Judge, and seek for consolidation and joint trial of all the suits. v) If such an application is filed, I leave it to absolute wisdom and discretion of the court below to decide whether the suits have to be tried parallelly, jointly or independently or if the former suit has to be tried first. sd/- sks/31.1.2023 **C.S.DIAS, JUDGE** 12 OP(C) No.2455 of 2022 ## **`APPENDIX OF OP(C) 2455/2022`** ``` PETITIONER EXHIBITS Exhibit P1TRUE COPY OF THE PLAINT IN O.S. 39/2018 PENDING BEFORE PRINCIPAL SUB COURT, NORTH PARAVOOR ``` ``` Exhibit P2TRUE COPY OF PLAINT IN O.S. 218/2018 PENDING BEFORE MUNSIFF COURT, NORTH PARAVOOR Exhibit P3TRUE COPY OF PLAINT IN O.S. 219/2018 PENDING BEFORE MUNSIFF COURT, NORTH PARAVOOR Exhibit P4TRUE COPY OF PLAINT IN O.S. 220/2018 PENDING BEFORE MUNSIFF COURT, NORTH PARAVOOR Exhibit P5TRUE COPY OF PLAINT IN O.S. 244/2018 PENDING BEFORE MUNSIFF COURT, NORTH PARAVOOR Exhibit P6TRUE COPY OF PLAINT IN O.S. 245/2018 PENDING BEFORE MUNSIFF COURT, NORTH PARAVOOR Exhibit P7TRUE COPY OF PLAINT IN O.S. 246/2018 PENDING BEFORE MUNSIFF COURT, NORTH PARAVOOR Exhibit P8TRUE COPY OF THE ORDER DATED 29.10.2022 IN T.O.P. 117/2021 Exhibit P9THE TRUE COPY OF THE B.A.NO. 1202/2008 FILED BY RESPONDENTS 1 AND 2 BEFORE THIS HON'BLE COURT (WITHOUT ANNEXURES) ```