Siji Joseph & Sijo Joseph v. Mary George & Bonny George

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 12TH DAY OF FEBRUARY 2018 / 23RD MAGHA, 1939** **OP(C).No. 2829 of 2017** **OS.44/2015 & OS.1/2015 of SUB COURT, OTTAPPALAM** ## **PETITIONERS:** **1 SIJI JOSEPH, D/O. LATE T.M JOSEPH, AGED 42, RESIDING AT THULAMATTATHIL, KALLADIKKODE AMSOM, DESOM, MANNARKAD TALUK AND PALAKKAD DISTRICT - 678 582.** **2 SIJO JOSEPH, D/O. LATE T.M JOSEPH, AGED 39, RESIDING AT THULAMATTATHIL, KALLADIKKODE AMSOM, DESOM, MANNARKAD TALUK AND PALAKKAD DISTRICT - 678 582.** **BY ADVS.SRI.P.B.KRISHNAN SRI.P.M.NEELAKANDAN SRI.P.B.SUBRAMANYAN SRI.SABU GEORGE** **RESPONDENTS:** **1. MARY GEORGE, W/O LATE GEORGE, AGED 55, RESIDING AT THULAMATTATHIL, KALLADIKKODE AMSOM, DESOM, MANNARKAD TALUK AND PALAKKAD DISTRICT - 678 582.** **2. BONNY GEORGE, S/O.LATE GEORGE, 25, RESIDING AT THULAMATTATHIL, KALLADIKKODE AMSOM, DESOM, MANNARKAD TALUK AND PALAKKAD DISTRICT - 678 582.** **BY ADVS. SRI.SANTHEEP ANKARATH SRI.ARUN MATHEW VADAKKAN** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 12-02-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **EL** **OP(C).No. 2829 of 2017 (O)** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **EXHIBIT P1 DATED 13-02-2013 - A TRUE COPY OF PLAINT IN O.S NO.33 OF 2013 ON THE FILE OF THE MUNSIFF-MAGISTRATE'S COURT, MANNARKKAD EXHIBIT P2 DATED 06-04-2013 - A TRUE COPY OF THE PLAINT IN O.S NO 56 OF 2013 ON THE FILE OF THE MUNSIFF-MAGISTRATE'S COURT, MANNARKKAD EXHIBIT P3 DATED NIL DECEMBER, 2014-A TRUE COPY OF THE PLAINT IN O.S NO 1 OF 2015 ON THE FILE OF THE SUB COURT, OTTAPPALAM EXHIBIT P4 DATED 10-02-2017-A TRUE COPY OF THE ORDER IN O.P.C NO.2625 OF 2016 ON THE FILE OF THIS HON'BLE COURT EXHIBIT P5 DATED 26-07-2017 A TRUE COPY OF THE ORDER IN I.A NO. 1296 OF 2017 IN O.P.C. NO.2625 OF 2016 ON THE FILE OF THIS HON'BLE COURT EXHIBIT P6 DATED 04-06-2015 A TRUE COPY OF T.O.P NO.184 OF 2015 ON THE FILE OF DISTRICT COURT, PALAKKAD EXHIBIT P7 DATED NIL, AUGUST, 2017- A TRUE COPY OF THE I.A NO 1341 OF 2017 IN O.S NO 44 OF 2015 ON THE FILE OF THIS SUB COURT, OTTAPALAM EXHIBIT P8 DATED 23-08-2017 A TRUE COPY OF THE OBJECTION IN I.A NO.1341 OF 2017 IN O.S NO.44 OF 2015 EXHIBIT P9 DATED 18-09-2017 A TRUE COPY OF ORDER IN I.A NO 1341 OF 2017 IN O.S NO.44 OF 2015 ON THE FILE OF THIS SUB COURT, OTTAPALAM** ## **RESPONDENT(S)' EXHIBITS** ## **NIL** **TRUE COPY** **P.S. TO JUDGE** ## **EL** **27.2.2018** ## **ALEXANDER THOMAS, J.** ================== ## O.P(C).No. 2829 of 2017 ================== Dated this the 12[th] day of February, 2018 ## **O R D E R** The prayers in this Original Petition (Civil) filed under the enabling provisions contained in Art.227 of the Constitution of India are as follows: - _“(i) Set aside Ext.P-9 passed by the Subordinate Judge, Ottapalam._ - _(ii) Pass an order allowing I.A.No. 1341 of 2017 in O.S.No. 44 of 2015 on the file of the Subordinate Judge's Court of Ottapalam exercising supervisory jurisdiction of this Hon'ble Court.”_ 2. Heard Sri.P.B.Krishnan, learned counsel appearing for the petitioners and Sri.Santheep Ankarath, learned counsel appearing for the respondents. 3. An application for transfer of two suits (O.S.No.33/2013 and O.S.No. 50/2013 pending before the Munsiff's Court, Mannarkkad) was filed before the District Court, Palakkad, in order to ensure joint trial of the same along with O.S.No.1/2015 on the file of the Sub Court, Ottapalam. The said application as per Ext.P-6 filed by the respondents herein was allowed by the District Court as per the order dated 11.6.2015 in Transfer O.P.No.184/2015 on the file of the District Court, Palakkad. The abovesaid three suits are now pending before the Sub Court, Ottapalam as O.S.No. 44/2015, O.S.No. 45/2015 and O.S.No. 1/2015. Ext.P-8 I.A.No. 1341/2017 filed by the petitioners herein in O.S.No.44/2015 for joint trial in the said O.P(C).2829/17 - : 2 :- suits has been dismissed by the Sub Court, Ottapalam, as per the impugned Ext.P-9 order 18.9.2017. The operative potion of Ext.P-9 order containing the reasonings and conclusions contained in para 5 thereof, reads as follows: _“5. OS 44/15 and OS 45/15 are two suits transferred to this court from MM Court, Mannarkkad as per order in TOP of Hon'ble District Court, Palakkad. OS 45/15 was filed by defendants in OS 44/15 against the plaintiffs in that suit. OS 1/15 filed by defendants 1 and 2 in OS 44/15 who are plaintiffs 2 and 3 in OS 45/15. Third defendant in OS 44/15 who is first plaintiff in OS 45/15 is not a party in OS 1/15. There was a direction from Hon'ble Court to dispose OS 1/15 before 31.7.2017 and subsequently Hon'ble High Court extended the time for three months from 26.7.2017. Now this petition is filed only on 16.8.2017. Petitioners have ample opportunity to file such a petition earlier. Now the intention of petitioner is only to protract the proceedings. Joint trial of cases is only a matter of convenience. In the present case, if joint trial is allowed, it will cause inconvenience to the court by protracting the trial of OS 1/15. In the circumstance, I am of the view that the petition need not be allowed.”_ 4. A reading of the impugned Ext.P-9 order would disclose that the main consideration, which weighed with the court below for rejecting the plea for transfer, is that this Court had already rendered a judgment as per Ext.P-4 order dated 10.2.2017, whereby it has been inter alia ordered therein O.S.No.1/2015 should be finally disposed by the Sub Court, Ottapalam, before 31.7.2017 and that if the petitioners' plea for joint trial is allowed, it may not be possible to achieve the time target, etc. It is common ground that later this Court had passed Ext.P-5 order dated 26.7.2017 granting extension of the time limit upto 3 months from 26.7.2017 for the disposal O.S.No.1/2015. It is also common ground of the parties that later this Court had passed subsequent order in I.A. in O.P(C).No. 2625/2016, whereby the time limit for disposal of O.S.No.1/2015 has again been O.P(C).2829/17 - : 3 :- extended by a further period of five months, etc. The grievance of the respondents herein is that they will not be in a position to complete the pre-trial steps in O.S.Nos.44 and 45 of 2015, if the joint trial of three suits is allowed and at the same time, the time limit in Ext.P-4 judgment for final disposal of the suit is to be complied with. It has to be borne in mind that the transfer petition was allowed by the District Court at the instance of the respondents herein and the specific plea was to the effect that all the 3 suits should be jointly tried. In view of the extended time limit, the respondents do not appear to have any serious objection to the grant of the prayer in this Original Petition (Civil). Moreover, it is the respondents, who are contending before the District Court in Ext.P-6 transfer O.P. that 2 other suits should be transferred to the Sub Court, Ottapalam, where O.S.No.1/2015 is pending, so as to have joint trial of all the three suits as the issues in relation to the 3 suits are intrinsically connected. In this view of the matter, it is ordered that the impugned Ext.P-9 order will stand set aside. It is further ordered that the prayer in Ext.P-8 I.A. will stand allowed. Accordingly, it is ordered that O.S.No. 44 /2015, O.S.No. 45/2015 and O.S.No. 1/2015 shall be jointly tried by the subordinate Judge's Court. 5. The Apex Court in the decision in _**Prem Lala Nahata & Anr. v. Chandi Prasad Sikaria**_ , reported in 2007 (2) SCC 551 = AIR 2007 SC 1247 = 2007 KHC 3076, has held in paras 18 and 19 thereof, as O.P(C).2829/17 - : 4 :- ## follows (see SCC report): _**“18.** 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 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, Vol. 37, para 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._ _**19.** It is recognised that the court has wide discretionary power to control the conduct of proceedings where there has been a joinder of causes of action or of parties which may embarrass or delay the trial or is otherwise inconvenient. In that situation, the court may exercise the power either by ordering separate trials of the claims in respect of two or more causes of action included in the same action or by confining the action to some of the causes of action and excluding the others or by ordering the plaintiff or plaintiffs to elect which cause of action is to be proceeded with or which plaintiff should proceed and which should not or by making such other order as may be expedient. (See Halsbury’s Laws of England, Vol. 37, para 73.) Surely, when the matter rests with the discretion of the court, it could not be postulated that a suit suffering from such a defect is something that is barred by law. After all, it is the convenience of the trial that is relevant and as the Privy Council has observed in the decision noted earlier, the defendant may not even have an absolute right to contend that such a suit should not be proceeded with.”_ 6. The Apex Court has also held in the judgment in _**Mahalaxmi**_ ## _**Co-operative Housing Society Ltd. & Ors. v. Ashabhai Atmaram**_ _**Patal through LRs**_ , reported in (2013) 4 SCC 404 = AIR 2013 SC 961 = ## 2013 KHC 4166 in paras 45 and 46, as follows: > _**“45.** We are also not much impressed by the argument of the learned Senior Counsel appearing for the respondent that the trial court has committed an error in not consolidating the various suits including Civil Suits Nos. 292 of 1993 and 681 of 1992 to be tried together as ordered by the District Court in its order dated 29-8-2006 in Civil Misc._ - : 5 :- O.P(C).2829/17 _Application No. 16 of 2005. Section 24 CPC only provides for transfer of any suit from one court to another. The court has not passed an order of consolidating all the suits. There is no specific provision in CPC for consolidation of suits. Such a power has to be exercised only under Section 151 CPC. The purpose of consolidation of suits is to save costs, time and effort and to make the conduct of several actions more convenient by treating them as one action. Consolidation of suits is ordered for meeting the ends of justice as it saves the parties from multiplicity of proceedings, delay and expenses and the parties are relieved of the need of adducing the same or similar documentary and oral evidence twice over in the two suits at two different trials. Reference may be made to the judgment of this Court in Prem Lala Nahata v. Chandi Prasad Sikaria [2007 (2) SCC 551]._ _**46.** The transfer of the suits from one court to another to be tried together will not take away the right of the parties to invoke Order 23 Rule 3 and there is also no prohibition under Order 23 Rule 3 or Section 24 CPC to record a compromise in one suit. Suits always retain their independent identity and even after an order of consolidation, the court is not powerless to dispose of any suit independently once the ingredients of Order 23 Rule 3 have been satisfied.”_ 7. A 3-Judge Bench of the Apex Court in the judgment in _**Nirmala Devi v. Arun Kumar Gupta,**_ reported in (2005) 12 SCC 505 has ordered that the original suit therein should be disposed of along with the probate application pending before the District Court. Similar direction has also been issued by the Apex Court in the decision in _**Balbir Singh Wasu v. Lakhbir Singh,**_ reported in (2005) 12 SCC 503, para 6. 8. In the light of the legal principles laid down by the Apex Court in the aforecited decisions, this Court is the view that the plea for joint trial of three cases could be befittingly considered in the light of the facts of the circumstances of this case. It is common ground of both sides that the matters in issue are intrinsically connected. It was the very case of the respondents in Ext.P-6 transfer O.P. that the two suits pending before the Munsiff's Court, should be transferred to the Sub Court, Ottapalam where O.S.No. 1/2015 is pending, for joint trial of the three cases. In the light of O.P(C).2829/17 - : 6 :- the abovesaid factual aspects, this Court is of the view that the prayer for joint trial could be allowed. Accordingly, it is ordered with the consent of both sides that the Sub Court, Ottapalam will jointly try O.S.No. 44/2015, 45/2015 and O.S.No. 1/2015. 9. Having regard to the fact that the respondents herein require time for completion of pre-trial steps, it is ordered that the Sub Court, Ottapalam, will take reasonable measures to complete the joint trial of three suits, without much delay, preferably within a period of 8 to 10 months from the date of production of a certified copy of this judgment. With these observations and directions, the above Transfer Petitions (Civil) stand finally disposed of. Sd/sdk+ **ALEXANDER THOMAS, JUDGE** ///True Copy/// P.S. to Judge