Suku, Krishnankutty and Sudhamani vs The State of Kerala and Others

Thomas P. Joseph, J.—Petitioners are plaintiffs in O.P (Ind.) No. 71 of 2003 and O.S. No. 38 of 2006 both of the court of learned Principal Sub Judge, Thiruvananthapuram. According to the learned Counsel for petitioners both the suits are in respect of the same property. In O.P(Ind.) No. 71 of 2003 the prayer is for recovery of damages to the tune of Rs. 49,50,000/-- on account of respondents allegedly trespassing into the suit property involved in O.S. No. 38 of 2006 and demolishing the structures allegedly belonging to the petitioners. In O.S. No. 38 of 2006 prayer is for declaration of title and possession of property in respect of which damages is claimed in O.P (Ind.) No. 71 of 2003. In O.S. No. 38 of 2006 petitioners filed I.A. No. 7445 of 2009 for issue of a commission but the suit was later dismissed for default. According to the learned Counsel for respondents I.A. No. 7445 of 2009 was also closed. Learned Counsel for petitioners would maintain that when O.S. No. 38 of 2006 was later restored to file I.A. No. 7445 of 2009 also got revived. Grievance of petitioners is that in so far as subject matter of both proceedings are one and the same petitioners filed I.A. No. 3394 of 2010 in O.S. No. 38 of 2006 for a joint trial of that case with O.P(Ind.) No. 71 of 2003. But that application has not been disposed of and instead is posted with the suit which is being brought up for trial in the list on 03.07.2010. Learned Counsel therefore seeks a direction to the learned Sub Judge to dispose of I.A. Nos. 7445 of 2009 and 3394 of 2010 before examination of witnesses in O.S. No. 38 of 2006 commenced. Learned Counsel for respondents vehemently contended that petitioners have no right or interest over the property referred to in both the proceedings and that it is a case of rank trespass. According to the learned Counsel I.A. No. 7445 of 2009 does not survive for consideration since it was closed when O.S. No. 38 of 2006 was dismissed for default.

I am not going into the question whether I.A. No. 7445 of 2009 survives for a decision after restoration of O.S. No. 38 of 2006. That is a matter which the learned Sub Judge has to consider and decide. If that application is pending necessarily it has to be disposed of before O.S. No. 38 of 2006 is disposed of. Application for joint trial if any pending is to be disposed of before commencement of examination of witnesses.

Resultantly, this Writ Petition is disposed of in the following lines:

(i) Learned Principal Sub Judge, Thiruvananthapuram shall dispose of I.A. No. 3394 of 2010 (for joint trial) before examination of witnesses in O.S. No. 38 of 2006 commenced.

(ii) In case I.A. No. 7445 of 2009 survives for a decision, learned Principal Sub Judge shall dispose of that application before O.S. No. 38 of 2006 is disposed of.

(iii) In case I.A. No. 7445 of 2009 is closed consequent to the dismissal of O.S. No. 38 of 2006 for default it will be open to the petitioners to seek revival of that application if they are otherwise entitled to that course and if any application in that regard is filed on 03.07.2010, learned Sub Judge shall decide that application according to its merit and as law provided.