Mathew vs Francis and Others

Thomas P. Joseph, J.—This petition is in challenge of Exts. P7 and P8, orders passed by the learned Munsiff, Thodupuzha in O.S. Nos. 56 of 2010 and 1 of 2004 refusing to order joint trial of those suits for the reason that major part of evidence in O.S. No. 1 of 2004 is over and it was a case remanded from the first appellate court.

Petitioner before me is the plaintiff in O.S. No. 56 of 2010 and defendant in O.S. No. 1 of 2004 filed by respondent No. 1. Respondent No. 1 is the sole defendant in O.S. No. 56 of 2010. It is not disputed before me by learned Counsel on both sides that the issue concerns the same property and both sides have prayed for a declaration of title they claim over the property and consequential reliefs. Respondents had earlier filed O.S. No. 242 of 2003 which was merely for a decree for prohibitory injunction and the learned Counsel submits that the said suit was dismissed as not pressed with liberty to file a fresh suit and thereafter respondent No. 1 filed O.S. No. 1 of 2004 for a declaration of title and recovery of possession alleging that petitioner trespassed into the property on 08.11.2003. Petitioner filed O.S. No. 56 of 2010 alleging that 10.53 acres in survey No. 880/1/1 including the suit property (in both the cases) belonged to the Devaswom where from his father took it on lease and obtained purchase certificate. Petitioner''s predecessor-in-interest expired on 04.04.1999. Thereon the suit property devolved on him. Thus he traces title.O.S. No. 1 of 2004 was tried and disposed of by the learned Munsiff and the suit was decreed in part on 03.08.2005 which petitioner challenged in A.S. No. 109 of 2005. That appeal was allowed as per judgment and decree dated 22.12.2009 and the case was remitted to the court of learned Munsiff for fresh disposal after giving opportunity to both sides to adduce evidence. Thus O.S. No. 1 of 2004 came back to the trial court. Petitioner therefore prayed for joint trial of O.S. No. 1 of 2004 and O.S. No. 56 of 2010. Learned Munsiff dismissed the applications for the reason that major part of evidence in O.S. No. 1 of 2004 is recorded and that it was once disposed of on merit and is a remanded case.

As I stated, it is not disputed before me that dispute in both the suits concern the same property and both sides are claiming title and its declaration. Learned Counsel for respondents submit that in the circumstances the appropriate course is to stay further proceedings in O.S. No. 56 of 2010 u/s 10 of the CPC (for short, "the Code") and for the said purpose, petitioner has already filed an application in the trial court. May be, that also is a course of action which could be adopted. But since the dispute concerns the same property and both the suits are pending and could be disposed of jointly there is no reason why one should go for stay of one suit to revive after disposal of the earlier suit which may take a few years. I also note that in O.S. No. 1 of 2004, evidence was adduced only on the side of respondent No. 1 and PW1 was examined and Exts.A1 to A5 were marked. In that situation there is no difficulty in tagging on O.S. No. 56 of 2010 with O.S. No. 1 of 2004 treating the latter suit as the main case and permitting parties to adduce evidence accordingly in that case. A joint trial of the two suits will give learned Munsiff opportunity to decide the controversy between parties more effectively. Convenience of court and parties also favours a joint trial. Having regard to these circumstances, I am inclined to think that learned Munsiff ought to have allowed joint trial notwithstanding that in O.S. No. 1 of 2004 evidence of respondent No. 1 has already been recorded and that is a remanded case.

Learned Counsel for respondents submits that O.S. No. 1 of 2004 is listed on 01.12.2010 for trial while O.S. No. 56 of 2010 stood posted on 06.11.2010. Learned Counsel submits that O.S. No. 56 of 2010 may be taken up on 01.12.2010 along with O.S. No. 1 of 2004 for joint trial. Learned Counsel for petitioner has no objection to that course. Having regard to the circumstances, it is made clear that it will be open to the learned Munsiff to take up O.S. No. 56 of 2010 for trial on 01.12.2010 if it is not otherwise inconvenient to the learned Munsiff.

Resultantly this petition is allowed in the following lines:

i. Exts.P7 and P8, orders are set aside and I.A. No. 651 of 2010 in O.S. No. 1 of 2004 and I.A. No. 650 of 2010 in O.S. No. 56 of 2010 will stand allowed.

ii. Learned Munsiff shall try and dispose of the suits jointly.

iii. It is open to the learned Munsiff to take up O.S. No. 56 of 2010 for trail in the list along with O.S. No. 1 of 2004 on 01.12.2010 as agreed by the counsel on both sides before me.