Shibu, Chithrakala Dasan and Shaila Premchand v. Padmavathy Amma and Sooryakala Anilkumar (OP(C) Nos. 1623/2021 & 1616/2021)

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE V.G.ARUN`** ``` WEDNESDAY, THE 15[TH] DAY OF DECEMBER 2021 / 24TH AGRAHAYANA, 1943 ``` ## **`OP(C) NO. 1623 OF 2021`** ``` AGAINST THE ORDER/JUDGMENT IN IA 6/2021 IN OS 445/2009 OF ADDITIONAL SUB COURT,KOLLAM ``` ## **`PETITIONER/S:`** - **`1 SHIBU AGED 52 YEARS S/O.LATE RAVEENDRAN, RESIDING IN THE ADDRESS SHIBU VIALSAM, AADICHANALLOOR VILLAGE, KOLLAM TALUK, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER S SACHIDANANAN, AGED 61, S/O. SUKUMARAN, RESIDING IN THE ADDRESS SL BHAVAN, CHIRAKKARA, NEDUNGOLAM P.O., PARAVUR, KOLLAM DISTRICT-691 334`** - **`2 CHITHRAKALA DASAN AGED 57 YEARS`** - **`D/O.LATE RAVEENDRAN, RESIDING IN THE ADDRESS SHIBU VIALSAM, AADICHANALLOOR VILLAGE, KOLLAM TALUK, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER S SACHIDANANAN, AGED 61, S/O. SUKUMARAN, RESIDING IN THE ADDRESS SL BHAVAN, CHIRAKKARA, NEDUNGOLAM P.O., PARAVUR, KOLLAM DISTRICT-691 334`** - **`3 SHAILA PREMCHAND AGED 59 YEARS`** - **`D/O.LATE RAVEENDRAN, RESIDING IN THE ADDRESS SHIBU VIALSAM, AADICHANALLOOR VILLAGE, KOLLAM TALUK, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER S SACHIDANANAN, AGED 61, S/O. SUKUMARAN, RESIDING IN THE ADDRESS SL BHAVAN, CHIRAKKARA, NEDUNGOLAM P.O., PARAVUR, KOLLAM DISTRICT-691 334`** - **`BY ADV G.SREEKUMAR (CHELUR)`** ## **`RESPONDENT/S:`** - **`1 PADMAVATHY AMMA D/O. CHELLAMMA AMMA, RESIDING IN THE ADDRESS SREE NARAYANA VILASAM, POOTHAKULAM CHERRY, KOLLAM DISTRICT-691 302`** - **`2 SOORYAKALA ANILKUMAR AGED 55 YEARS`** ## **`OP(C) NO. 1623 and 1616 OF 2021`** ``` 2 ``` ``` S/O. K.K.RAVEENDRAN,RESIDIN IN THE ADDRESS SHIBU VIALSAM, AADICHANALLOOR VILLAGE, NEDUNGOLAM P.O., PARAVOOR, KOLLAM DISTRICT-691 334 BY ADV B.MOHANLAL ``` ``` THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 15.12.2021, ALONG WITH OP(C).1616/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ## **`OP(C) NO. 1623 and 1616 OF 2021`** ``` 3 ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE V.G.ARUN ``` ``` WEDNESDAY, THE 15[TH] DAY OF DECEMBER 2021 / 24TH AGRAHAYANA, 1943 OP(C) NO. 1616 OF 2021 ``` ``` AGAINST THE ORDER/JUDGMENT IN OS 862/2008 OF ADDITIONAL SUB ``` ## **`COURT,KOLLAM`** ## **`PETITIONER/S:`** - **`1 SHIBU AGED 52 YEARS`** ``` S/O.LATE RAVEENDRAN, RESIDING IN THE ADDRESS SHIBU VILASAM, AADICHANALLOOR VILLAGE, KOLLAM TALUK, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER S.SACHIDANANAN, AGED 61, S/O.SUKUMARAN, RESIDING IN THE ADDRESS SL BHAVAN, CHIRAKKARA, NEDUNGOLAM P.O., PARAVUR, KOLLAM DISTRICT - 691 334. ``` ``` 2CHITHRAKALA DASAN AGED 57 YEARS D/O.LATE RAVEENDRAN, RESIDING IN THE ADDRESS SHIBU VILASAM, AADICHANALLOOR VILLAGE, KOLLAM TALUK, KOLLAM DISTRICT REPRESENTED BY HIS POWER OF ATTORNEY HOLDER S.SACHIDANANAN, AGED 61, S/O.SUKUMARAN, RESIDING IN THE ADDRESS SL BHAVAN, CHIRAKKARA, NEDUNGOLAM P.O., PARAVUR, KOLLAM DISTRICT -691 334. ``` ``` 3SHAILA PREMCHAND AGED 59 YEARS D/O.LATE RAVEENDRAN, RESIDING IN THE ADDRESS SHIBU VILASAM, AADICHANALLOOR VILLAGE, KOLLAM TALUK, KOLLAM DISTRICT REPRESENTED BY HIS POWER OF ATTORNEY HOLDER S.SACHIDANANAN, AGED 61, S/O.SUKUMARAN, RESIDING IN THE ADDRESS SL BHAVAN, CHIRAKKARA, NEDUNGOLAM P.O., PARAVUR, KOLLAM DISTRICT - 691 334. BY ADV G.SREEKUMAR (CHELUR) ``` ``` RESPONDENT/S: ``` ## **`OP(C) NO. 1623 and 1616 OF 2021`** ``` 4 ``` - **`1 PADMAVATHY AMMA AGED 65 YEARS`** - **`D/O.CHELLAMMA AMMA, RESIDING IN THE ADDRESS SREE NARAYANA VILASAM, POOTHAKULAM CHERRY, KOLLAM DISTRICT - 691 302.`** - **`2 SOORYAKALA ANILKUMAR AGED 55 YEARS`** - **`S/O.K.K.RAVEENDRAN, RESIDING IN THE ADDRESS SHIBU VILASAM, AADICHANALLOOR VILLAGE, NEDUNGOLAM P.O., PARAVOOR, KOLLAM DISTRICT - 691 334. BY ADV B.MOHANLAL`** ``` THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 15.12.2021, ALONG WITH OP(C).1623/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ## **`OP(C) NO. 1623 and 1616 OF 2021`** ## **JUDGMENT** **Dated this the 15[th] day of December, 2021** The challenge in this original petition is against Ext.P8 order by which an application for joint trial of two suits O.S No.862 of 2008 and 445 of 2009 pending on the files of the Additional Sub Court, Kollam stands rejected. 2.The essential facts are that, O.S No.862 of 2008 is filed by the 1[st] respondent Padmavathy Amma against the legal heirs of one K.K Ravindran, alleging that K.K Ravindran had borrowed money from her and had issued a cheque for Rs.20,00,000/- (Rupees Twenty Lakhs Only) towards discharge of the liability and that the cheque was dishonored on presentation. The borrower K.K Ravindran having expired before the suit was filed, petitioners, being the legal heirs of the deceased ``` OP(C) NO. 1623 and 1616 OF 2021 ``` ``` 6 ``` Ravindran were arrayed as defendants. O.S No.455 of 2009 is filed by Padmavathy Amma against the very same defendants, seeking specific performance of an agreement of sale executed by Ravindran. The petitioners sought joint trial of the suits on the premise that the parties and the evidence to be tendered are common. The prayer for joint trial was opposed by the 1[st] respondent / plaintiff, contending that joint trial cannot be ordered, merely for reason of the parties being common. Trial court accepted the objection and dismissed the application for joint trial. Hence these original petitions. 3.Adv. G. Sreekumar Chelur, learned counsel for the petitioners, submitted that the parties are the same and the alleged transactions in both suits are between the plaintiff and K.K Ravindran. Further, petitioners are setting up a common defence and the plaintiff will not be put to any prejudice by the suits being tried jointly. ``` OP(C) NO. 1623 and 1616 OF 2021 ``` 4. Adv. B. Mohanlal, learned counsel for the 1[st] respondent/ plaintiff stoutly opposed the prayer for joint trial and submitted that the well reasoned order of the trial court warrants no interference. It is contended that the suits pertain to two entirely different transactions and the issues arising for consideration are different. Relying on the decision of the Honourable Supreme Court in **State Bank Of India vs Ranjan Chemicals Ltd. and another [(2007) 1 SCC 97],** it is argued that joint trial can be ordered only if common questions of law or fact arise in both proceedings, or the right to relief claimed in the suits are in respect of, or arise out of, same transactions or series of transactions. It is submitted that the petitioners cannot seek joint trial on the ground that they are residing abroad, since they are contesting the suit through their power of attorney holder. 5. Indisputably, the parties in both suits are common ``` OP(C) NO. 1623 and 1616 OF 2021 ``` ## **`8`** and the petitioners are raising the same defence in both suits. Moreover, the trial court itself has noticed that the parties are common and most of the documents to be marked would be the same. Hence, I find merit in the request for joint trial. It is pertinent to note that, in the absence of a specific provision in the Code of Civil Procedure empowering the court to order joint trial, the inherent power than under Section 151 of CPC can be resorted to for rendering justice to the parties. In the result, the original petition is allowed. Ext.P8 order is set aside. O.S Nos 862 of 2008 and 445 of 2009 on the files of the Additional Sub Court, Kollam shall be tried jointly. **Sd/V.G ARUN JUDGE** SJ ``` OP(C) NO. 1623 and 1616 OF 2021 ``` ``` 9 ``` ## **`APPENDIX OF OP(C) 1616/2021`** ``` PETITIONER EXHIBITS Exhibit P1 ``` ``` A TRUE COPY OF THE POWER OF ATTORNEY EXECUTED IN THE NAME OF THE POWER HOLDER S.SACHIDANANAN DATED NIL. ``` ``` Exhibit P2A TRUE COPY OF THE PLAINT IN OS NO.862 OF 08 ON THE FILE OF THE ADDITIONAL SUB COURT, KOLLAM DATED 22/10/08. Exhibit P3A TRUE COPY OF THE WRITTEN STATEMENT FILED IN OS NO.862 OF 08 ON THE FILE OF THE ADDITIONAL SUB COURT, KOLLAM DATED 2/1/17. Exhibit P4A TRUE COPY OF THE PLAINT IN OS NO.445 OF 09 ON THE FILE OF THE ADDITIONAL SUB COURT, KOLLAM DATED 29/6/09. Exhibit P5A TRUE COPY OF THE WRITTEN STATEMENT IN OS NO.445 OF 09 ON THE FILE OF THE ADDITIONAL SUB COURT, KOLLAM DATED 3/1/17. Exhibit P6A TRUE COPY OF THE IA NO.6 OF 21 IN OS NO.862 OF 08 ON THE FILE OF THE ADDITIONAL SUB COURT, KOLLAM DATED 20/1/21. Exhibit P7A TRUE COPY OF THE OBJECTION FILED TO EXT.P6 BY THE PLAINTIFF DATED 8/2/21. Exhibit P8A TRUE COPY OF THE ORDER PASSED IN IA NO.6 OF 21 IN OS NO.862 OF 09 DATED 6/8/21 ON THE FILE OF THE ADDITIONAL SUB COURT, KOLLAM. ``` ``` OP(C) NO. 1623 and 1616 OF 2021 ``` ## **`10`** ## **`APPENDIX OF OP(C) 1623/2021`** |**`PETITIONER EXHIBITS`**|| |---|---| |**`Exhibit P1`**|**`A TRUE COPY OF THE POWER OF ATTORNEY`**| ||**`EXECUTED IN THE NAME OF THE POWER HOLDER S`**| ||**`SACHIDANANAN DATED NIL`**| |**`Exhibit P2`**|**`A TRUE COPY OF THE PLAINT IN OS NO.862 OF 08`**| ||**`ON THE FILE OF THE ADDITIONAL SUB COURT,`**| ||**`KOLLAM DATED 22.10.08`**| |**`Exhibit P3`**|**`A TRUE COPY OF THE WRITTEN STATEMENT FILED`**| ||**`IN OS NO.862 OF 08 ON THE FILE OF THE`**| ||**`ADDITIONAL SUB COURT, KOLLAM DATED 2.1.17`**| |**`Exhibit P4`**|**`A TRUE COPY OF THE PLAINT IN OS NO.445 O F09`**| ||**`ON THE FILE OF THE ADDITIONAL SUB COURT,`**| ||**`KOLLAM DATED 29.6.09`**| |**`Exhibit P5`**|**`A TRUE COPY OF THE WRITTEN STATEMENT IN OS`**| ||**`NO.445 OF 09 ON THE FILE OF THE ADDITIONAL`**| ||**`SUB COURT, KOLLAM DATED 3.1.17`**| |**`Exhibit P6`**|**`A TRUE COPY O THE IA NO.6 OF 2021 IN OS`**| ||**`NO.862 OF 08 ON THE FILE OF THE ADDITIONAL`**| ||**`SUB COURT, KOLLAM DATED 20.1.21`**| |**`Exhibit P7`**|**`A TRUE COPY OF THE OBJECTION FILED TO EXT P6`**| ||**`BY THE PLAINTIFF DATED 8.2.2021`**| |**`Exhibit P8`**|**`A TRUE COPY OF THE ORDER PASSED IN IA NO.6`**| ||**`OF 21 IN OS NO.445 OF 09 DATED 6.8.21 ON THE`**| ||**`FILE OF THE ADDITIONAL SUB COURT, KOLLAM`**|