LIS (Regd.) Palackal Court v. Joy Joseph and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH** **FRIDAY, THE 11TH JUNE 2010 / 21ST JYAISTHA 1932** **WP(C).NO. 33232 OF 2009(O)** **-------------------------------------** **OS.1413/2008 OF PRL.M.C.,ERNAKULAM** **....................** ## **PETITIONER(S):** **-----------------------** **1. LIS (REGD.)PALACKAL COURT,NEAR SHENOY'S THEATRE,M.G.ROAD,ERNAKULAM,COCHIN-682035,REP; BY ITS MANAGING PARTNER.** **2. KURIACHAN CHACKO,MANAGING TRUSTEE,LIS** - **(REGD.),PALACKAL COURT,NEAR SHENOY'S THEATRE, M.G.ROAD, ERNAKULAM,COCHIN-682035.** **BY ADV. SRI.O.V.MANIPRASAD** ## **RESPONDENT(S):** **------------------------** **1. JOY JOSEPH,AGED 44 YEARS,S/O.JOSEPH, THULUSSERIL,MUTTUCHIRA.P.O,KOTTAYAM,-686 613.** **2. SALOMMA JOB,AGED 39 YEARS,W/O.JOY JOSEPH THULUSSERIL,MUTTUCHIRA.P.O,KOTTAYAM-686 613.** **3. JOSIN.C.THARIEN,AGED 34 YEARS, S./O.P.J.VARGHESE,THULUSSERIL,MUTTUCHIRA.P.O, KOTTAYAM-686613.** **4. JOBIN.C.THARIAN,AGED 28 YEARS, THULUSSERIL,MUTTUCHIRA.P.O,KOTTAYAM-686613.** **ADV. SRI.B.RAMACHANDRAN FOR R1 TO4** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **APPENDIX ---------------** ## **PETITIONER'S EXHIBITS: ----------------------------------** **EXHIBIT P1 TRUE COPY OF THE PLAINT IN O.S. NO.1413 OF 2008 ON THE FILE OF THE MUNSIFF COURT, ERNAKULAM.** **EXHIBIT P2 DEFENDANTS.** **TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE** **EXHIBIT P3 TRUE COPY OF THE ORDER DATED 30.3.2009 IN O.S. NO.1413 OF 2008 OF THE MUNSIFF COURT, ERNAKULAM.** **EXHIBIT P4 TRUE COPY OF THE REVIEW PETITION FILED BY THE RESPONDENTS AS I.A. NO.36341 OF 2009.** **EXHIBIT P5 TRUE COPY OF THE ORDER DATED 3.10.2009 IN O.S. NO.1413 OF 2008 BY THE MUNSIFF COURT, ERNAKULAM.** **RESPONDENT'S EXHIBITS:** **-----------------------------------** **EXHIBIT R1(a) TRUE COPY OF THE STATEMENT DATED 30.10.2006.** **EXHIBIT R1(b) TRUE COY OF THE ADVERTISEMENT DATED 20.1.2010 IN MALAYALA MANORAMA DAILY.** **EXHIBIT R1(c) TRUE COPY OF ADVERTISEMENT DATED 22.11.2008 IN MATHRUBHUMI DAILY.** **EXHIBIT R1(d) TRUE COPY OF THE ADVERTISEMENT DATED 23.11.2009 IN DEEPIKA DAILY.** **EXHIBIT R1(e) TRUE COPY OF THE ADVERTISEMENT DATED 11.9.2005 IN TRIKALAM MAGAZINE.** **EXHIBIT R1(f) TRUE COPY OF THE ADVERTISEMENT DATED 21.10.2005 IN TRIKALAM MAGAZINE.** **EXHIBIT R1(g) TRUE COPY OF THE ADVERTISEMENT DATED 1.11.2005 IN TRIKALAM MAGAZINE.** **EXHIBIT R1(h) TRUE COY OF THE ADVERTISEMENT DATED 1.12.2005 IN TRIKALAM MAGAZINE.** |**EXHIBIT R1(i)**|**TRUE COPY OF NOTICE DATED 3.6.208.**| |---|---| |**EXHIBIT R1(j)**|**TRUE COPY OF THE REPLY NOTICE DATED 16.6.2008.**| |**EXHIBIT R1(k)**|**TRUE COPY OF THE LAWYER NOTICE DATED 15.8.2008.**| |**EXHIBIT R1(l)**|**TRUE COPY OF THE REPLY NOTICE DATED 27.9.2008.**| ## **TRUE COPY** ## **THOMAS P.JOSEPH, J.** **==================================== W.P(C) 33232 of 2009 ==================================== Dated this the 11[th] day of June, 2010** ## **J U D G M E N T** As per the version of respondents-plaintiffs, petitionersdefendant Nos.1 and 3 along with defendant No.2 had initiated a Scheme as per which money deposited with them would be returned in double the amount on expiry of eleven months from date of deposit. Lured by that Scheme respondents deposited various amounts in their respective names with the petitioners and on those deposits attaining maturity petitioners did not pay the amount as promised. It is the further case of respondents that on their issuing notice to petitioners demanding payment petitioners offered to pay the amount deposited provided respondents give in writing that they will not make any further claim. That was not agreeable to the respondents and hence claiming maturity value of the deposits they filed O.S.No.1413 of 2008 in the court of learned Munsiff, Ernakulam. All the respondents joined the suit though stated about their respective deposits and the amount due. Petitioners contended before the learned Munsiff that the suit is bad for non-joinder of all respondents as well as the causes of action. Learned Munsiff initially thought that the objection is ## **W.P(C) No.33232 of 2009** ## -: 2 :- sustainable and as per order dated 30.03.2009 upheld the objection of petitioners and directed respondents to confine the suit as being in respect of any one claim and file necessary application for amendment. Aggrieved by the said order respondents moved the same court in review (I.A. No.3631 of 2009). Learned Munsiff heard both sides and vide Ext.P5, order dated 03.10.2009 reviewed the order dated 30.03.2009 and held that though there is no common question of law or fact arising between respondents it is not necessary to direct respondents to file separate suits in view of the decision of the Apex Court in ## **Prem Lala Nahata v. Chandi Prasad** (2007 [1] KLT 910). That order of review is under challenge in this Writ Petition. Learned counsel for petitioners contended that there was no necessity or occasion to review the order dated 30.03.2009 which was correct on point of law and on facts as revealed from the impugned order where learned Munsiff observed that “there is no common question of law or fact” among the respondents. According to the learned counsel even as per decision relied on by the learned Munsiff it is not necessary that suit in respect of all the respondents must proceed and that it is within the discretion of the court to order separate trial. Learned Munsiff having ## **W.P(C) No.33232 of 2009** ## -: 3 :- exercised that discretion as per order there was no reason for learned Munsiff to reconsider the same and pass the impugned order. Learned counsel for respondents contended that in the light of the decision of the Apex Court referred supra learned Munsiff was not correct in directing separate suits and hence the order was correctly reviewed. 2. There is no dispute that respondents have joined the money Scheme allegedly initiated by petitioners through deposits made by them on different dates and of different amounts. It is the common case of respondents that as per the said Scheme petitioners had offered to pay double the amount on the fixed deposits getting mature after eleven months from the date of deposit. Therefore it is not as if there is no common question arising in respect of the claim made by the respondents. Common question of fact arising is whether there was in fact such a Scheme as claimed by them as per which petitioners offered to pay double the amount on the fixed deposits attaining maturity. Mere fact that learned Munsiff has observed otherwise need not prevent this Court from holding that a common question of fact is involved. 3. So far as joinder of all respondents as plaintiffs and ## **W.P(C) No.33232 of 2009** ## -: 4 :- causes of action are concerned, Order II Rule 3 of the Code of Civil Procedure (for short, “the Code”) is subject to Order I Rule 1 of the Code. Hence several plaintiffs may unite several causes of action in the same suit though they may not be jointly but are severally interested. According to the respondents it is not as if each of them are interested in the cause of action of the other. After referring to the provisions of Order I Rule 2 of the Code it is stated in paragraphs 13 to 15 of the decision (supra) that the said provisions are procedural and that procedure is a handmaid for justice and not its mistress. It is also stated that in situations as in the case on hand though it is well within the power of court to direct separate trial it is also possible for the court to treat the suits filed by plaintiffs as separate suits being tried together. It is held that the court is still competent to try and decide the suit though the court may also be competent to tell the plaintiffs either to elect to proceed at the instance of one of the plaintiffs or proceed with one of the causes of action. 4. Learned counsel for petitioners has invited my attention to the observations in paragraph 16 of the judgment where it is stated that jurisdiction to consolidate (if separate suits are preferred) arises where there are two or more matters or ## **W.P(C) No.33232 of 2009** ## -: 5 :- causes pending in the court and it appears to the court that some common question of law or fact arises in both or all the suits or that the rights to relief claimed in the suits are in respect of the same transaction or a series of transactions. In this case I stated that respondents proceeded on a common fact that as per the Scheme initiated by the petitioners they were promised double the amount of deposit on maturity of such deposits. Having regard to all these aspects I am of the view that decision relied on by counsel for respondents applied to the facts of the case and it was not absolutely necessary that learned Munsiff ought to have directed separate suits. 5. Learned counsel for petitioners contended that relief prayed is for a huge amount and it will cause difficulty to the petitioners. It is true that a consolidated amount is claimed by the respondents to be appropriated among themselves. If such a course is not warranted or causes inconvenience it is within the power of court to mould the reliefs based on entitlement of each of the respondents on the strength of the Fixed Deposits in their favour. 6. Having regard to the facts and circumstances of the case I do not consider it necessary, just or proper to interfere ## **W.P(C) No.33232 of 2009** -: 6 :- with the impugned order. Resultantly, Writ Petition fails. It is dismissed. ## **THOMAS P. JOSEPH, JUDGE.** vsv