High Court of KeralaOP(C)/3791/2013allowed

Musthafa v. Viyyokutty

2015-06-26Honourable Mr. Justice A.Hariprasad4 pages

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT:

THE HONOURABLE MR. JUSTICE A.HARIPRASAD FRIDAY, THE 26TH DAY OF JUNE 2015/5TH ASHADHA, 1937 OP(C).No. 3791 of 2013 (O) --------------------------- AGAINST ORDERDATED 30.08.2013 IN IA NO.128/2013 IN OS NO.122/2005 AND ORDER IN IA NO.130/2013 IN OS NO.248/2012 OF MUNSIFF COURT , PERUMBAVOOR PETITIONER(S)/PLAINTIFF:

----------------------------------------- MUSTHAFA, AGED 46B YEARS S/O.KUNJU MEETHIAN, AYATHAN HOUSE, N CHELAKULAM KARA PATTIMATTOM VILLAGE, KUNNATHUNADU TALUK ERNAKULAM DISTRICT.

BY ADV. SRI.K.G.CLEETUS RESPONDENT(S)/DEFENDANTS:

-----------------------------------------------

1. VIYYOKUTTY, AGED ABOUT 69 YEARS W/O. THELAYI PAREEKUTTY, MOLATHUKUDY HOUSE CHELAKKULAM KARA, PATTIMATTOM VILLAGE KUNNATHUNADU TALUK-683578.

2. HAMEED, AGED ABOUT 53 YEARS S/O. THELAYI PAREEKUTTY, MOLATHU HOUSE CHELAKKULAM KARA, PATTIMATTOM VILLAGE KUNNATHUNADU TALUK-683578.

3. JAMEELA, AGED ABOUT 43 YEARS W/O.ISMAYIL, D/O.THELAYI PAREEKUTTY, MOLATHUKUDY HOUSE WEST VENGOLA P.O., NEAR POOMALA CRUSHER POOMALA BHAGOM, ARACKAPPADY VILLAGE KUNNATHUNADU TALUK-683578.

4. SUHARA, AGED ABOUT 37 YEARS W/O.ABOOBACKER, D/O. THELAYI PAREETH, ETTIYATTIL HOUSE IDAVOOR P.O., OKKAL GRAMA PANCHAYATH KOOVAPPADY VILLAGE, KUNNATHUNADU TALUK-683578.

5. SAJITHA, AGED ABOUT 33 YEARS D/O.THELAI PAREETH, W/O.SIDHIQUE, CHERULLIYIL HOUSE PALIPRASSERY BHAGOM, CHENGAMANAD P.O.

CHENGAMANAD GRAMA PANCHAYATH, CHENGAMANAD VILLAGE ALUVA TALUK-683578.

6. MEETHIYAN, AGED 60 YEARS S/O.ISMAYIL, VARAPPOTHU MUNDETH VEETTIL CHELAKULAM KARA, PATTIMATTOM VILLAGE KUNNATHUNADU TALUK -683578.

R2 BY ADVS. SRI.V.RAJENDRAN PERUMBAVOOR SRI.GEORGE VARGHESE KIZHAKKAMBALAM THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 26-06-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

OP(C).No. 3791 of 2013 (O) --------------------------- APPENDIX PETITIONER(S)' EXHIBITS ------------------------------------- EXHIBIT P1 : TRUE COPY OF PLAINT IN O.S.NO.248/12 EXHIBIT P2 : TRUE COPY OF LAINT IN O.S.NO.122/05 EXHIBIT P3 : TRUE COPY OF COMMISSION REPORT DATED 04.04.2005 IN O.S.NO.122/05 EXHIBIT P3(A) : TRUE COPY OF THE ROUGH SKETCH PRODUCED ALONG WITH COMMISSION REPORT EXHIBIT P4 : TRUE COPY OF WRITTEN STATEMENT DATED 29.07.2005 FILED BY THE PETITIONER EXHIBIT P5 : CERTIFIED COPY THE JUDGMENT DATED 17.07.2008 IN A.S.33/08 OF SUB COURT, PERUMBAVOOR EXHIBIT P6 : TRUE COPY OF THE COMMISSION REPORTN IN O.S.NO.122/05 EXHIBIT P6(A) : TRUE COPY OF THE SURVEY SKETCH DATED 14.05.2010 PRODUCED ALONG WITH COMMISSIONER REPORT EXHIBIT P7 : TRUE COPY OF THE JUDGMENT DATED 08.11.2012 IN O.P.

(C) 152/11B OF HIGH COURT OF KERALA EXHIBIT P8 : TRUE COPY OF THE I.A.130/13 IN O.S.NO.248/13 FOR JOINT TRIAL EXHIBIT P9 : TRUE COPY OF THE I.A.NO.128/13 IN O.S.248/13 FOR JOINT TRIAL EXHIBIT P10 : TRUE COPY OF THE OBJECTION DATED 29.01.2013 AGAINST THE JOINT TRIAL PETITION EXHIBIT P11 : TRUE COPY OF THE ORDER DATED I.A.128/13 IN O.SNO.122/05 EXHIBIT P12 : TRUE COPY OF THE ORDER DATED I.A.130/13 IN O.S.NO.

A.HARIPRASAD, J.

-------------------------------------- O.P.(C) No.3791 of 2013 -------------------------------------- Dated this the 26th day of June, 2015

JUDGMENT

Exts.P11 and P12 orders passed by the learned Munsiff, Perumbavoor in O.S.No.248 of 2012 are under challenge. Request for consolidation of suits was rejected.

Heard the learned counsel for the petitioner and the respondents.

Exts.P1 and P2 are the plaints presented before the lower court. The plaintiff in Ext.P1 suit is the defendant in Ext.P2 suit. The subject matter in both the suits is a disputed pathway. As per Ext.P12 order, learned Munsiff dismissed an application for consolidation of these two suits. According to the learned counsel for the petitioner, observation by the learned Munsiff in the impugned order that the subject matter in both the suits are not the same is incorrect. It is also submitted by the learned counsel for the petitioner that some of the parties in both the suits are common and in one suit, there are additional parties. Certainly that will not make the suit unworthy of a joint trial. It is seen that O.S.No.122 of 2005, one of the suits, was disposed of by the trial court and taken in appeal to the Sub Court. Thereafter, the Sub Court remanded the matter to the trial

OP(C) No.3791/2013 court for fresh consideration after adducing further evidence. Considering the facts and circumstances, I am of the view that to avoid multiplicity of proceedings and also cumbersome trial of two suits, the course of consolidation of suits can be adopted. There is no reason to think that any of the parties will suffer prejudice on account of the joint trial of suits. Learned counsel for the respondents also conceded that there is no objection for the respondents in going for a joint trial. In the result, the petition is allowed. Exts.P11 and P12 orders are set aside. The trial court shall consolidate O.S.No.122 of 2005 and 248 of 2012 and try the same in accordance with law and dispose of the same as expeditiously as possible, at any rate within a period of six months from the date of production of a copy of this judgment. A. HARIPRASAD, JUDGE.

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