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High Court of KeralaSingle JudgeOriginal Petition dismissed; Ext.P9 order uphel...

OP(C) No.1154/2021 (In OS Nos. 109/2004 & 119/2004, Sub Court, Thiruvalla)

Case / Petition Number:OP(C) No.1154/2021

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • C. Jayachandran
Judgment Date
2023-11-29
Court Decision / Holding
The Original Petition is dismissed. The court upholds the Sub Judge’s order denying joint trial, and Ext.P9’s reasoning is not interfered with. The two suits remain non-consolidated, and the Joint Trial Petition is rejected.
Final Disposition
Original Petition dismissed; Ext.P9 order upheld; joint-trial not granted; consolidation denied.

Parties to the Case

Appellants / Petitioners

  • T.O.ALEYAS

Respondents

  • T.O.ABRAHAM
  • BINU ZACHARIAH
  • ABRAHAM BABY
  • BOBY T.KURIAKOSE
  • THANKAMMA BABY
  • STEPHEN BABY
  • BINOJ BABY
  • THOMAS SKARIAH

Legal Representation & Advocates

Counsels for Petitioners

  • • Jacob P. Alex Joseph
  • • P. Alex Manu Sankar P.

Counsels for Respondents

  • • Paul Jacob
  • • Sheru Joseph
  • • Mathew Thomas

Case Synopsis & Summary

This judgment from the Kerala High Court (Single Judge) deals with an original petition filed by T.O.ALE YAS, the first defendant in OS No.109/2004 (partition) and OS No.119/2004 (settlement of accounts) of the Sub Court, Thiruvalla. The petition challenges Ext.P9, an order of the Sub Judge dismissing an application for joint trial. The petitioner contends substantial overlap between the partition suit and the settlement suit—some issues are common and some evidence to be adduced is shared—arguing consolidation is necessary to avoid delay and ensure consistency, especially since some properties are alleged to have been purchased from profits of the family business. It is noted that in Ext.P1 there was a prior application for consolidation which was allowed, but Ext.P1 was later dismissed for default and subsequently restored, reviving interlocutory orders including joint trial. The petitioner relies on Supreme Court precedents (Vareed Jacob v. Sosamma Geevarghese; State Bank of India v. Renjan Chemicals Ltd.) and Kerala High Court’s Joseph v. Benny J. Aricatt to assert that a joint trial can proceed with overlapping but not identical issues. Conversely, respondents argue that Ext.P9’s order is sound as the two proceedings have different scopes and evidential needs, making consolidation unsuitable. The court, after hearing, finds no merit in the petition, upholds the Sub Judge’s reasoning, and dismisses the petition, maintaining the original order for joint trial not being warranted at this stage.

Provisions of Law Cited

Partnership Act, 1969, Chapter VI

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that several issues in the partition suit and the settlement of accounts suit are identical or show sufficient overlap to warrant a consolidated joint trial. They argue that part of the properties under dispute were acquired from profits of the family business, making a consolidated adjudication efficient and coherent. They point to Ext.P1 (consolidation petition) which had been allowed, its subsequent default, and the restoration reviving the joint-trial prospect; reliance is placed on Supreme Court judgments Vareed Jacob v. Sosamma Geevarghese, State Bank of India v. Renjan Chemicals Ltd., and Kerala HC’s Joseph v. Benny J. Aricatt to show that joint trials can proceed even if not all issues are common and some evidences are shared.

Contentions of Respondents

The respondents contend that Ext.P9’s order is well-reasoned as the two proceedings have distinct scopes and purposes: partition focuses on co-ownership and entitlements, while settlement of accounts falls under the Partnership Act. They argue the evidence to be admitted and the issues to be decided are different, and consolidation would intermix proceedings and cause delays. They emphasize the necessity to keep the two suits separate to avoid intertwined adjudication and potential prejudice to parties.

Cited Precedents (3)

Case NameCitationTreatmentExplanation
Vareed Jacob v. Sosamma Geevarghese and Others(2004) 6 SCC 378PositiveCited to support the proposition that joint trial may proceed even if not all issues are common, provided some issues and evidences are shared.
State Bank of India v. Renjan Chemicals Ltd. and another(2007) 1 SCC 97PositiveCited for the same principle that some overlap suffices for a joint trial, not requiring complete identity of issues.
Joseph v. Benny J. Aricatt(2020) 6 KLT 389PositiveCited to illustrate Kerala High Court's stance that joint trial can be allowed where some common issues or evidence exist.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **WEDNESDAY, THE 29[TH] DAY OF NOVEMBER 2023 / 8TH AGRAHAYANA, 1945** **OP(C) NO. 1154 OF 2021** **IN OS NO.109/2004 & OS 119/2004 OF ASSISTANT SESSIONS COURT/** **SUB COURT, THIRUVALLA** ## **PETITIONER/1ST DEFENDANT:** T.O.ALEYAS, AGED 60 YEARS, THOTTATHIL HOUSE, MUTHOOR P.O., RAMANCHIRA, THIRUVALLA. BY ADVS. JACOB P.ALEX JOSEPH P.ALEX MANU SANKAR P. ## **RESPONDENTS/PLAINTIFF & DEFENDANTS 2 TO 8:** 1 T.O.ABRAHAM, THOTTATHIL MALIYEKKAL, THURUTHIKKADU P.O., MALLAPPALLY, PATHANAMTHITTA DISTRICT, PIN-689 597. 2 BINU ZACHARIAH, URUMBIKUNNEL, THURUTHIKKADU P.O., MALLAPPALLY, PATHANAMTHITTA DISTRICT, PIN-689 597. 3 ABRAHAM BABY, MARY SADANAM, THURUTHIKKADU P.O., MALLAPPALLY, PATHANAMTHITTA DISTRICT, PIN-689 597. 4 BOBY T.KURIAKOSE, THOTTATHIL PUTHENPURA, THURUTHIKKADU P.O., MALLAPPALLY, PATHANAMTHITTA DISTRICT, PIN-689 597. 5 THANKAMMA BABY, MARY SADANAM, THURUTHIKKADU P.O., MALLAPPALLY, PATHANAMTHITTA DISTRICT, PIN-689 597. 6 STEPHEN BABY, MARY SADANAM, THURUTHIKKADU P.O., MALLAPPALLY, PATHANAMTHITTA DISTRICT, PIN-689 597. **OP(C) No.1154/2021** **- 2 -** 7 BINOJ BABY, MARY SADANAM, THURUTHIKKADU P.O., MALLAPPALLY, PATHANAMTHITTA DISTRICT, PIN-689 597. 8 THOMAS SKARIAH, SAFFIRE APARTMENT, NEW NANDAVANAM ROAD, NANDAVANAM P.O., THIRUVANANTHAPURAM, PIN-695 034. BY ADVS. PAUL JACOB (P) SHERU JOSEPH(K/1522/2002) MATHEW THOMAS(K/253/2022) **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 29.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **OP(C) No.1154/2021** **- 3 -** ## **JUDGMENT** **Dated, this the 29[th] day of November, 2023** **The petitioner herein is the first defendant in O.S. No.109/2004 of the Sub Court, Thiruvalla and the respondents are plaintiff and defendants 2 to 8 respectively in the said suit. This original petition is filed aggrieved by Ext.P9 order of the learned Sub Judge, which dismissed an application for joint trial.** **2. Heard the learned counsel for the petitioner and the learned counsel for the respondents.** **3. Ext.P1 suit is one for partition and Ext.P3 suit is for settlement of accounts. In the** **OP(C) No.1154/2021** **- 4 -** **partition suit, a counter claim is also laid. Learned counsel for the petitioner would submit that some of the issues to be considered in both the suits are the same. The parties in the suit for settlement of accounts are the parties in the former suit for partition, though certain other family members are also parties in the first suit. There is a contention to the effect that some of the properties, which are sought to be partitioned and in respect of which reliefs are sought for in the counter claim, are properties which are purchased from the profits derived out of the family business. In such circumstances, consolidation of the suits is absolutely necessary, is the contention of the learned counsel. Learned counsel also pointed out that earlier, an application was preferred in Ext.P1 suit, seeking consolidation of the same with Ext.P3 suit, which was allowed. Subsequently, Ext.P1 suit was dismissed for default. The same** **OP(C) No.1154/2021** **- 5 -** **was later restored whereupon, all interlocutory orders would revive, including the order for joint trial, is the argument advanced. In support of the above proposition, learned counsel relied upon a judgment of the Hon'ble Supreme Court in Vareed Jacob v. Sosamma Geevarghese and Others [(2004) 6 SCC 378, at paragraph nos.17, 18, 19, 20 & 21]. In the context of joint trial, learned counsel also relied upon a judgment of the Hon'ble Supreme Court in State Bank of India v. Renjan Chemicals Ltd. and another [(2007) 1 SCC 97] and another judgment of this Court in Joseph v. Benny J. Aricatt [2020 6 KLT 389], both for driving home the proposition that. it is not the necessity of law for the purpose of joint trial that all the issues should be common; and that it is enough that some of the issues are common and some of the evidences to be let in are also common.** **OP(C) No.1154/2021** ## **- 6 -** **4. Per contra, this Original Petition was seriously opposed by the learned counsel for the respondents by pointing out that Ext.P9 order, replete with reasons and logic, after taking into account all relevant considerations, is not liable to be interfered with. Learned counsel would submit that the scope of both the proceedings are different, wherefore, the nature of evidence to be let in are also different, which negates the necessity for consolidation.** **5. Having heard the learned counsel appearing on both sides, this Court finds little merit in the instant Original Petition. As pointed out by the learned counsel for the respondents, the scope of the proceedings are different. Ext.P1 suit is one for partition, whereas Ext.P3 suit is for settlement of accounts in the family business. It is true, that in both of these cases, the parties are family members and that some of the** **OP(C) No.1154/2021** ## **- 7 -** **family members in the suit for partition are also parties in the second suit for settlement of accounts. This, by itself, is not a reason for consolidation of the two suits. The court below considered the question as to the identity of the parties, nature of the evidence to be let in and also the scope of the suits, to find that the suits are not liable to be consolidated. In the partition suit, the question as to whether the parties are all co-owners/co-heirs in respect of the properties sought to be partitioned has to be gone into and once the same is satisfied, their entitlement of share as per the personal law applicable has to be decided, for the purpose of preliminary decree. Whereas, the scope of a suit for settlement of accounts is completely different, which is substantiated in Chapter VI of the Partnership Act, 1969. As rightly found by the court below, the nature and scope of the suit and the nature and scope of the evidence to** **OP(C) No.1154/2021** **- 8 -** **be let in, in both the suits are different. Clubbing of the two suits, which is not indicated otherwise, may also lead to the suits getting intertwined and the delay in one may impact the disposal of the other as well. For weighty and lofty reasons, the application for joint trial stands rejected and this Court finds no reason to interfere with the well considered order of the learned Sub Judge, with the result, this Original Petition will stand dismissed.** **Sd/-** ## **C.JAYACHANDRAN, JUDGE** Skk//11.12.2023 **OP(C) No.1154/2021** ## **- 9 -** ## **APPENDIX OF OP(C) NO.1154/2021** ## **' - PETITIONER S EXHIBITS:** - EXHIBIT P1 TRUE COPY OF THE PLAINT IN OS NO.109 OF 2004 ON THE FILES OF SUB COURT, THIRUVALLA. - EXHIBIT P2 TRUE COPY OF THE WRITTEN STATEMENT AND COUNTER CLAIM IN OS NO.109 OF 2004 ON THE FILES OF SUB COURT, THIRUVALLA. - EXHIBIT P2 A TRUE COPY OF THE WRITTEN STATEMENT FILED BY PLAINTIFFS TO EXHIBIT P2 COUNTER CLAIM IN OS NO.109 OF 2004 ON THE FILES OF SUB COURT, THIRUVALLA. - EXHIBIT P3 TRUE COPY OF THE PLAINT IN OS NO.119 OF 2004 ON THE FILES OF SUB COURT, THIRUVALLA. - EXHIBIT P4 CERTIFIED COPY OF THE WRITTEN STATEMENT IN OS NO.119 OF 2004 ON THE FILES OF SUB COURT, THIRUVALLA. - EXHIBIT P5 TRUE COPY OF THE JOINT TRIAL PETITION FILED AS IA NO.732 OF 2010 IN OS NO.109 OF 2004 ON THE FILES OF SUB COURT, THIRUVALLA., - EXHIBIT P7 TRUE COPY OF THE JOINT TRIAL PETITION FILED AS IA NO.7 OF 2020 IN OS NO.109 OF 2004 ON THE FILES OF SUB COURT, THIRUVALLA. - EXHIBIT P6 TRUE COPY OF THE ORDER DATED 21.06.2010 IN IA NO.732 OF 2010 IN OS NO.109 OF 2004 BEFORE THE SUB COURT, THIRUVALLA. - EXHIBIT P8 TRUE COPY OF THE COUNTER AFFIDAVIT DATED 18.11.2020 FILED BY 1ST RESPONDENT TO EXHIBIT P7 APPLICATION. - EXHIBIT P9 TRUE COPY OF THE ORDER DATED 30.06.2021 IN IA NO.7 OF 2020 IN OS NO.109 OF 2004 ON THE FILES OF SUB COURT, THIRUVALLA.