OPC No. 933 of 2010 (O)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN** **TUESDAY, THE 17TH DAY OF JANUARY 2012/27TH POUSHA 1933** ## **OPC.No. 933 of 2010 (O)** **-------------------------------[OS.NO.192/2006 OF SUB COURT,ATTINGAL]** **..................** ## **PETITIONER//2ND DEFENDANT:** **----------------------------------------------** **FOUZIA BEEGAM,D/O.MOHAMMED ALI, PARADIES,PALAMOODU,VEMBAYAM, THEKKADA VILLAGE, NEDUMANGAD TALUK, THIRUVANANTHAPURAM.** **BY ADVS. SRI. KODOTH SREEDHARAN, SRI.P.K.NIJOY, SMT.C.PRABITHA.** ## **RESPONDENTS/PLAINTIFF & DEFENDANTS 1,3,4 & 5:** **-----------------------------------------------------------------------------** **1. MYTHEEN PICHA,S/O.ABDUL RAHUMAN, T.C.32/267/2,KOCHUVELI,KARIKKAKOMMURI, KADAKAMPALLI VILLAGE,THIRUVANANTHAPURAM - 695 306.** **2. JAMEELA BEEVI,W/O.MOHAMMED ALI, FOUZIA MANZIL,KIZHUVILAM VILLAGE, MUDAPURAM.P.O - 695 314.** ## **3. FAZIHA,D/O.MOHAMMED ALI,FOUZIA MANZIL, KIZHUVILAM VILLAGE,MUDAPURAM.P.O - 695 314.** **4. FAZILA,D/O.MOHAMMED ALI,RESIDING AT** - **-DO- -DO-.** **5. FAIZAL,D/O.MOHAMMED ALI, RESIDING AT -DO- -DO-** - **R1 BY SRI.S.BALACHANDRAN (KULASEKHARAM), BY ADV. SRI.SASTHAMANGALAM S. AJITHKUMAR.** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 17-01-2012,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **O.P.C.NO.933/2010-O:** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:-** ## **EXT.P.1: COPY OF THE I.A. NOS. 1681/2010.** ## **EXT.P.1.A: COPY OF THE I.A. NOS.1682/2010.** **EXT.P.2: COPY OF THE OBJECTION DTD. 14/08/2010 TO I.A. NO. 1681/2010. EXT.P.2.A: COPY OF THE OBJECTION DTD. 14/08/2010 TO I.A. NO.1682/2010. EXT.P.3: COPY OF THE ORDER DTD. 25/09/2010 IN I.A. NO. 1681/2010. EXT.P.4: COPY OF THE ORDER DTD. 25/09/2010 IN I.A. NO. 1682/2010.** ## **RESPONDENT'S EXHIBITS:-** **EXT.R1.A: COPY OF THE AGREEMENT DT. 14/09/02. EXT.R1.B: COPY OF THE SALE DEED NO.2896/02. EXT.R1.C: COPY OF THE PLAINT IN O.S. 192/06. EXT.R1.D: WRITTEN STATEMENT IN O.S. 192/06. EXT.R1.E: COPY OF THE PLAINT IN O.S.144/06.** **EXT.R1.F: COPY OF THE WRITTEN STATEMENT IN O.S.144/06. EXT.R1.G: ORDER IN CMA.108/08.** **//TRUE COPY//** **P.A. TO JUDGE** **Prv.** **S.S.SATHEESACHANDRAN, J. ----------------------------------------------O.P.(C)No.933 of 2010-O ----------------------------------------------Dated this the 17[th] day of January, 2012** ## **JUDGMENT** Challenge in the original petition is against Exts.P3 and P4 orders passed by the learned Sub Judge, Attingal. Petitioner is the plaintiff in O.S.No.144/06 on the file of the Sub Court, Attingal. She is also the 2nd defendant in O.S.No.192/6 on the file of the same court, which had been instituted by the defendant in O.S.No.144/06 as the plaintiff. In the latter suit, O.S.No.192/06, apart from the petitioner, her mother, brother and sisters are also arrayed as defendants. 2. The petitioner as the plaintiff instituted O.S.No.144/06 seeking declaration of her title, and re-conveyance of 1 acre of property from the defendant alleging that a sale deed executed over such property was a sham document and it was intended only as a security for the loan availed ## **O.P.(C)No.933 of 2010-O** ## **:: 2 ::** from the defendant. After institution of the suit, the defendant filed the other suit, O.S.No.192/06 for specific performance of an agreement of sale over 64 cents of property out of an extent of 1 acre and 64 cents, of which 1 acre belonged to the petitioner under a gift deed from her father, and the rest belonging to her father, one Mohammed, at a time when he was in prison in Muscat. Initially, an agreement for sale over the entire 1 acre and 64 cents was entered upon and advance collected, according to the defendant to discharge the liabilities of the father of the petitioner, who, then was imprisoned. Pursuant to such agreement, the petitioner herein executed a sale deed over 1 acre of property. Over the remaining extent of 64 cents, which belonged absolutely to her father, agreement for its sale was entered by the mother of the petitioner. Later, Mohammed, father of the petitioner passed away, and. after his death, there ## **O.P.(C)No.933 of 2010-O** ## **:: 3 ::** was refusal on the part of the petitioner and other legal heirs of Mohammed to execute the sale deed in terms of the agreement. Suit was, therefore, instituted for specific performance of the agreement for sale of 64 cents of property. At the time when the suit, O.S.No.144/06 instituted by the petitioner as plaintiff came up in the list, two applications were moved by the 1st respondent/plaintiff in the other suit, one for joint trial, and the other for removal of the case from the list. The application for joint trial was allowed by Ext.P3 order. The request for removal of the suit, O.S.No.144/06, was also allowed by Ext.P4 order. Propriety and correctness of those orders are challenged in this petition. 3. Challenge against Ext.P4 order has become infructuous since O.S.No.144/06 has long since been removed ordering its joint trial with the other case. So, we are concerned only with the ## **O.P.(C)No.933 of 2010-O** **:: 4 ::** legality and correctness of Ext.P3 order by which joint trial of O.S.No.144/06 with O.S.No.192/06, was ordered by the learned Sub Judge. Though the learned counsel for the petitioner would urge that there is no identity of cause of action in the two suits warranting joint trial and such a course would cause great hardship to both the parties in the suits looking into the copies of the plaint and also the written statement in such suits, which had been handed over to me for my perusal, I find no impropriety in Ext.P3 order passed by the learned Sub Judge, though he has not stated supporting reasons for holding that joint trial of the case is more feasible. The Apex Court in Prem Lala Nahata v. Chandi Prasad {2007 (1) KLT 910 (SC) considering the question of consolidation of suits has sated thus: It cannot be disputed that the court has power to consolidate suits in appropriate cases. Consolidation is a process by which two or more causes or matters are by order of the ## **O.P.(C)No.933 of 2010-O** ## **:: 5 ::** Court combined or united and treated as one cause or matter. The main purpose of consolidation is therefore to save costs, time and effort and to make the conduct of several actions more convenient by treating them as one action. The jurisdiction to consolidate arises where there are two or more matters or 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 or arise out of the same transaction or series of transactions; or that for some other reason it is desirable to make an order consolidating the suits. (See Halsbury's Laws of England, Volume 37, paragraph 69). If there is power in the court to consolidate different suits on the basis that it should be desirable to make an order consolidating them or on the basis that some common questions of law or fact arise for decision in them, it cannot certainly be postulated that the trying of a suit defective for misjoinder of parties or causes of action is something that is barred by law. The power to consolidate recognised in the court obviously gives rise to the position that mere misjoinder of parties or causes of action is not something that creates an obstruction even at the threshold for the entertaining of the suit. ## **O.P.(C)No.933 of 2010-O** ## **:: 6 ::** Similarly, this court in Janardhanan Pillai v. Kochunarayani Amma {1976 KLT 279 FB} considered the scope and ambit of consolidation of suits has pointed out that there is no provision in the Code for consolidating suits. Consolidation of two or more suits does not depend upon the satisfaction of conditions for invoking Section 10 or any other provision of the Code; but, only for the sake of convenience and more particularly to avoid conflicting decisions. In fact, a joint trial is ordered by the court below in exercise of its inherent powers to avoid hardship to the parties, and also to advance the ends of justice. Whenever the court finds that consolidation of two suits is to be ordered, it is governed by the interest of justice and it is not depended upon the agreement of parties. No doubt, an opportunity must be extended to the parties in the suits for hearing, to consider consolidation of the suits. Considering ## **O.P.(C)No.933 of 2010-O** ## **:: 7 ::** the issues arising for consideration in the two suits, in which though different reliefs are canvassed by the parties, it is apparent that more or less common sets of evidence by them, and same questions for adjudication by the court will arise, for decision. When that be so, Ext.P3 order allowing joint trial of the two suits by the court below can never be found fault with. Original petition lacks merit, and it is dismissed. Sd/(S.S.SATHEESACHANDRAN) JUDGE sk/- //true copy// P.S. to Judge.