O.P.(C).No. 3638 of 2011

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH** **THURSDAY, THE 24TH NOVEMBER 2011 / 3RD AGRAHAYANA 1933** **OP(C).No. 3638 of 2011(O)** **--------------------------------** **TOP.334/2011 of DISTRICT COURT, THRISSUR OS.92/2010 of MUNSIFF COURT,CHAVAKKAD** **....................** ## **PETITIONER** - **--------------** **ADV.T.R.VAIDYANATHAN, S/O.KAIPPILLY MADATHIL RAMAKRISHNA IYER, GURUVAYOOR AMSOM DESOM, CHAVAKKAD TALUK, THRISSUR DISTRICT.** **BY ADVS. SRI.DINESH MATHEW J.MURICKEN SRI.P.V.BALAKRISHNAN RESPONDENT(S):** - **---------------------** **1. SAHASRANAMAN, AGED 65 YEARS,** **S/O.KAIPPILLY MADATHIL RAMAKRISHNA IYER, GURUVAYOOR AMSOM DESOM, CHAVAKKAD TALUK, NOW RESIDING AT 765 INDIRA NAGAR, IIND STAGE, KRISHNA RAJAPURAM, BANGALORE - 560038.** **2. RAMACHANDRAN, AGED 61 YEARS, S/O.KAIPPILLY MADATHIL RAMAKRISHNA IYER, GURUVAYOOR AMSOM DESOM, CHAVAKKAD TALUK, NOW RESIDING AT FLAT NO.4, SUVARNAKUJ, MOHANT ROAD, VILLEPARLE, EAST MUMBAI - 400057.** ## **3. MUTHUKRISHNAN, AGED 70 YEARS,** - **S/O.KAIPPILLY MADATHIL RAMAKRISHNA IYER, GURUVAYOOR AMSOM DESOM, CHAVAKKAD TALUK, NOW RESIDING AT 49/170A, KAIPPILLY MADOM, BLOSSOM ROAD, ELAMAKKARA, KOCHI - 682026.** ## **4. SUB REGISTRAR, ANDATHODE P.O.,THRISSUR DISTRICT-679564.** ## **5. SUB REGISTRAR,KOTTAPPADY P.O.,THRISSUR DISTRICT-686695.** **6. GOVERNMENT OF KERALA, REPRESENTED BY DISTRICT COLLECTOR,THRISSUR, AYYANTHOLE P.O.,THRISSUR - 680003.** **R1-3 BY ADV. SRI.P.SANTHOSH (PODUVAL)** **SMT.R.RAJITHA** **R4 TO R6 BY GOVT. PLEADER SRI.V.K.RAFEEK** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 24/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **svs** ## **W.P.(C). NO. 3638/2011** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1: COPY OF THE PLAINT IN O.S. 92/2010 DATED 15.11.07** - **P2: COPY OF THE PLAINT IN O.S.38/2011 DATED 04.01.2011** - **P3: ORDER IN WPC NO.24837/2009 DATED 08.10.2009** - **P4: COPY OF THE T.O.P.NO.334/2011 DATED 01.08.2011** - **P5: COPY OF THE OBJECTION IN T.O.P.NO.334/2011** - **P6: COPY OF THE ORDER PASSED IN T.O.P.NO.334/2011 DATED 02.11.2011.** ## **RESPONDENT'S EXHIBITS: NIL** **/TRUE COPY/** ## **P.A. TO JUDGE.** **svs** ## **THOMAS P. JOSEPH, J.** ## **----------------------------------------** **O.P(C).No.3638 of 2011** ## **---------------------------------------** ## **Dated this 24[th] day of November, 2011** ## **JUDGMENT** Ext.P6, order in T.O.P.No.334 of 2011 of the Court of learned District Judge, Thrissur is under challenge in this proceeding. 2. According to the petitioner, himself and respondents 1 to 3 derived title to various properties as per partition deed No.3359 of 1995 which contained a pre-emption clause in favour of petitioner. At a time when according to the petitioner, respondents 1 to 3 attempted to sell their share to third parties in violation of that pre-emption clause petitioner filed O.S.No.92 of 2010 in the Court of learned Munsiff, Chavakkad for a decree for prohibitory injunction to restrain alienation. In the meantime, a third party filed O.S.No.938 of 2008 in the Sub Court, Thrissur against respondents 1 to 3 for specific performance of an agreement for sale of their share to that third party. That third party filed a transfer petition before the learned District Judge to consolidate O.S.Nos.92 of 2010 and 938 of 2008. Learned District Judge allowed that petition against which petitioner filed W.P(C).No.24837 of 2009. This Court allowed the writ petition O.P(C).No.3638 of 2011 -: 2 :- by Ext.P3, judgment and set aside the order of transfer. There was a direction to the Courts concerned to try the respective suits. According to the petitioner, in the meantime he had a settlement with respondents 1 to 3 followed by respondents 1 to 3 agreeing to sell their share to the petitioner based on the right of pre-emption petitioner claims. Since respondents 1 to 3 allegedly failed to perform their part of the contract, petitioner filed O.S.No.38 of 2011 before the learned third Additional Sub Judge, Thrissur for specific performance of the agreement for sale against respondents 1 to 3. That was followed by petitioner filing T.O.P.No.334 of 2011 before the learned District Judge for transfer of O.S.No.92 of 2010 from the Court of learned Munsiff, Chavakkad to the Court of third Additional Sub Judge, Thrissur for joint trial of that case with O.S.No.38 of 2011. That petition was dismissed by the learned District Judge as per Ext.P6, order which is under challenge. 3. Learned counsel submitted that learned District Judge has dismissed T.O.P.No.334 of 2011 in view of Ext.P3, judgment in W.P(C).No.24837 of 2009. It is argued that the circumstances now exist is entirely different from the one which existed when the third party who filed O.S.No.938 of 2008 sought consolidation O.P(C).No.3638 of 2011 -: 3 :- of that suit and O.S.No.92 of 2010. It is contended by the learned counsel that the alleged agreement for sale is entered into between petitioner and respondents 1 to 3 since petitioner has a right to pre-emption provided by the partition deed No.3359 of 1995 and the question whether the right to pre-emption existed is to be considered by the learned Munsiff, Chavakkad in O.S.No.92 of 2010 also and in the circumstance, the two suits pending between petitioner and respondents 1 to 3 are to be disposed of jointly. 4. Learned counsel for respondents contended that there is nothing common between the two suits - O.S.No.92 of 2010 being only for a decree for prohibitory injunction to restrain respondents from transferring their share to third parties and the exercise of right to pre-emption arising only after the sale is effected to third parties and that too, against the third party - purchaser. In O.S.No.38 of 2011 what is involved is whether there is any agreement for sale between respondents 1 to 3 no matter, whether petitioner has got a right of pre-emption or not. 5. The power of Court to consolidate suits is decided in **Prem Lala Nahata v. Chandi Prasad (2007 (1) KLT 910** **(SC))** . In paragraph 16, it is stated, among other things that O.P(C).No.3638 of 2011 -: 4 :- where 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 it is within the power of the Court to consolidate the suits. 6. Assuming that the question of enforcement of right of pre-emption would arise only after respondents 1 to 3 transferred the property to third parties in violation of the alleged right of petitioner and the right to enforce pre-emption is available only against third party purchaser, it is not disputed that properties involved in both the suits are one and the same and that parties are also the same. In such a situation, it is appropriate and convenience of the parties for adducing evidence in respect of the respective contentions also required that the suits are tried and disposed of by the same Court. At any rate, by adopting such a course no prejudice will be caused to the respondents for, respondents could raise their contention in the respective suits as they have already raised. I am told that in O.S.No.92 of 2010 steps are complete and the matter could be posted for trial in the list while in O.S.No.38 of 2011 issues are to be framed. Having O.P(C).No.3638 of 2011 -: 5 :- regard to the nature of O.S.No.38 of 2011, I am inclined to think that without much difficulty, the Court could after framing issues post that case also for trial in the list. 7. In that view of the matter, I am inclined to think that it is appropriate that the suits are consolidated in the same Court and are disposed of jointly. 8. Ext.P3, judgment was rendered by this Court in an entirely different situation where a third party filed suit for specific performance against respondents 1 to 3 and petitioner had nothing to do with that claim of the third party. I am told that O.S.No.938 of 2008 is not now pending. Hence, Ext.P3, judgment need not stand in the way of O.S.Nos.92 of 2010 and 38 of 2011 being consolidated in the same Court and disposed of jointly. 9. In the light of what I have stated above, I am inclined to allow this original petition. ## Resultantly this original petition is allowed as follows: (i) Ext.P6, order in T.O.P.No.334 of 2011 of the Court of learned district Judge, Thrissur is set aside and that petition will stand allowed. (ii) O.S.No.92 of 2010 is withdrawn from the Court of learned Munsiff, Chavakkad and transferred to the Court of learned third Additional O.P(C).No.3638 of 2011 -: 6 :- Sub Judge, Thrissur for joint trial and disposal with O.S.No.38 of 2011 pending in that Court. (iii) The transferor court shall transmit records of the case to the transferee court with due intimation to the counsel on both sides as to the date of appearance in the transferee court. (iv) Learned third Additional Sub Judge, Thrissur is directed to expedite the pre-trial steps if any in O.S.No.38 of 2011 so that both the cases could be posted for trial in the list and disposed of as early as possible having regard to the grievance of respondents regarding the delay in disposal of the proceeding. ## **(THOMAS P. JOSEPH, JUDGE)** Sbna/-