Dismissed

Sarojini v. Justin Rajkumar

Kerala HC2 Nov 2016Tr.P(C)/595/2016

Case brief

AI extract

What is this about?

The High Court dismissed a transfer petition seeking to move O.S.No.784/1998 to II Additional Munsiff Court for joint trial with O.S.No.1561/2012. The Court held the District Judge was justified, noting the petitions involved old suits attempting prolongation and that subject matter overlaps were not grounds for transfer.

What did the court decide?

Transfer of O.S.No.784/1998 to II Additional Munsiff Court dismissed.

Sarojini Vs Justin Rajkumar — Property and Title | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN

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WEDNESDAY, THE 2ND DAY OF NOVEMBER 2016/11TH KARTHIKA, 1938

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Tr.P(C).No. 595 of 2016 ()

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OS. NO.784/1998 WITHDRAWN FROM THE ADDITIONAL MUNSIFF COURT (RENT CONTROL COURT), THIRUVANANTHAPURAM. O.S. NO.1561/2012 OF II ADDITIONAL MUNSIFF COURT, THIRUVANANTHAPURAM.

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PETITIONER(S):

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1. SAROJINI,

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W/O VELAYUDHAN ASARI, AGED 81 YEARS, T.C.14/1394, BINU COTTAGE, PALAYAM, THIRUVANANTHAPURAM.

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2. VIJAYAN,

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S/O VELAYUDHAN ASARI, T.C.14/1394, BINU COTTAGE, PALAYAM, THIRUVANANTHAPURAM.

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3. CHANDRAN,

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S/O VELAYUDHAN ASARI, T.C.14/1394, BINU COTTAGE, PALAYAM, THIRUVANANTHAPURAM.

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BY ADVS.SRI.M.R.ANANDAKUTTAN,

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SMT.M.A.ZOHRA, SRI.MAHESH ANANDAKUTTAN, SMT.S.SOUMYA ISSAC.

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RESPONDENT(S):

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1. JUSTIN RAJA KUMAR, S/O C.A. RAJARATNAM, T.C.14/1752, ALAPPAT BUILDING, VAZHUTHACAUD, THIRUVANANTHAPURAM-695 014.

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2. JASMINE, D/O C.A. RAJARETNAM, T.C.14/1752, ALAPPAT BUILDING, VAZHUTHACAUD, THIRUVANANTHAPURAM-695 014.

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3. RACHEL, W/O C.A. RAJARRTNAM, T.C.14/1752, ALAPPAT BUILDING, VAZHUTHACAUD, THIRUVANANTHAPURAM-695 014.

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THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02-11-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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rs.

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Tr.P(C).No. 595 of 2016

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APPENDIX

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PETITIONER'S ANNEXURES:-

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ANNEXURE AI COPY OF THE PLAINT IN O.S. NO.1561/2012 OF THE HON'BLE MUNSIFF COURT, THIRUVANANTHAPURAM. ANNEXURE AII COPY OF THE PLAINT IN O.S. NO.784/1998 OF ADDITIONAL MUNSIFF COURT, (R.C.C.), THIRUVANANTHAPURAM. ANNEXURE AIII COPY OF THE TRANSFER PETITION OP(T.P.) NO.397/2014. ANNEXURE AIV COPY OF THE ORDER DATED 03/07/2016 IN OP(T.P.) 397/2014 OF THE DISTRICT COURT, THIRUVANANTHAPURAM.

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RESPONDENT'S ANNEXURES:- NIL.

//TRUE COPY//

P.S. TO JUDGE

rs.

K. Ramakrishnan, J.

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============================== Tr.P.(C)No.595 of 2016

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============================== Dated this, the 02^nd day of November, 2016.

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O R D E R

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This is an application filed by the petitioners for transfer of O.S.No.784/1998 pending before Additional Munsiff Court, (Rent Control Court), Thiruvananthapuram to II Additional Munsiff Court, Thiruvananthapuram to be tried along with O.S.No.1561/2012 pending before that court, under Section 24 of the Code of Civil Procedure.

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The petitioners are siblings and they are

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residing in House No.T.C.14/1394 situated in Ward No.14 (Palayam Ward in Thiruvananthapuram). The said building is the plaint 'C' schedule property in O.S.No.1561/2012 pending before II Additional Munsiff Court, Thiruvananthapuram. The suit was filed by the first petitioner against the respondents. The petitioners' property is situated on the eastern side of plaint 'A'

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Tr.P.(C)No.595 of 2016 : 2 :

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schedule pathway in the suit. The respondents' property and the building in plaint 'B' schedule are situated on the western side of plaint 'A' schedule property in O.S.No.1561/2012. Annexure A1 is the plaint in that

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case. The third respondent along with one Rajaretnam filed Annexure AII suit as O.S.No.784/1998 against the petitioners herein and also against one Ganesan and Rajendran who died, pending suit, for recovery of the plaint B schedule property from the first defendant after demolishing the structure of the part of the building which is being found in that portion and the compound wall and for putting up a compound wall along the eastern boundary of plaint A schedule property sharing expenses between plaintiffs and first defendant equally and also putting up a compound wall on the unenclosed part of northern boundary of plaint A schedule property by sharing the expenses between plaintiffs and defendants 2 to 5 and also for prohibitory injunction restraining the defendants from trespassing into plaint C schedule passage in plaint A schedule property. The petitioners

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Tr.P.(C)No.595 of 2016 : 3 :

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filed Annexure AIII petition as O.P.(TP)No.397/2014 before the Principal District Court, Thiruvananthapuram to transfer O.S.No.784/1998 pending before Additional Munsiff Court, (Rent Control Court), Thiruvananthapuram to II Additional Munsiff Court, Thiruvananthapuram to be tried along with O.S.No.1561/2012 pending before that court. The Principal District Judge by Annexure AIV order dismissed the petition. Aggrieved by the same, the present Transfer Petition has been filed under Section 24 of the Code of Civil Procedure.

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Heard Smt.M.A.Zohra, counsel appearing for the petitioners.

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The counsel appearing for the petitioners submitted that the subject matter in both the cases are same and if the cases are tried by different courts, there is a possibility of different finding being entered by the courts below. In order to avoid the same, it is necessary that both these cases will have to be tried together. So, the case will have to be transferred. The District Judge has not properly appreciated the facts and without

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Tr.P.(C)No.595 of 2016 : 4 :

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application of mind, the petition has been dismissed.

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It is an admitted fact that petitioners herein are

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defendants 1, 3 and 4 in O.S.No.784/1998 filed by third respondent and her husband against the petitioners and two others claiming certain reliefs including recovery of possession of the property said to have been trespassed and reduced into the possession by the defendants in that suit. The first defendant in O.S.No.784/1998 has filed O.S.No.1561/2012 on the file of II Additional Munsiff Court, Thiruvananthapuram, for injunction restraining the defendants in that suit including the second plaintiff in O.S.No.784/1998 from interfering with the use of the pathway. It is also seen from the order that O.S.No.784/1998 was filed by father and mother of the first respondent, seeking several reliefs including fixation of boundary. An another suit was also filed by them as O.S.No.1740/1998 against Thiruvananthapuram Corporation and both these suits were tried jointly and both the suits were dismissed earlier. Against the same, they filed A.S.Nos.105/2003 and 111/2003 before the

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Tr.P.(C)No.595 of 2016 : 5 :

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District Court, Thiruvananthapuram and the same were allowed and remanded to the court below for fresh disposal. The present petitioners filed FAO No.272/2008 and FAO No.237/2008 before this Court, challenging the order of remand in A.S.Nos.105/2003 and 111/2003 and this Court dismissed those appeals on 02.03.2010. Thereafter, surveyor went to the property and submitted a report in the cases in which the appeals were allowed and remanded for fresh disposal. It is thereafter that the first petitioner herein filed O.S.No.1561/2012 for a decree for mandatory injunction and removal of unauthorised structure of the building. It may be mentioned here that O.S.No.1561/2012 was filed subsequent to the remand order passed and after the challenging of the same was dismissed by this Court. The attempt of the petitioners is to prolong the old suits of 1998 pending before the Munsiff Court. Further, the right to passage now claimed in O.S.No.1561/2012 is also a subject matter in O.S.Nos.784/1998 and 1740/1998. Nothing was mentioned about O.S.No.1740/1998 by the petitioners

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Tr.P.(C)No.595 of 2016 : 6 :

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either in the suit filed by them or in the transfer petition filed. The right of the petitioners in respect of the passage can also be considered and decided by the court in the earlier suits pending between the parties. So, under such circumstances, the District Judge was perfectly justified in coming to the conclusion that there is no necessity to transfer the suit, namely, O.S.No.784/1998, which is already been listed for trial, to II Additional Munsiff Court, Thiruvananthapuram to be tried along with O.S.No.1561/2012 pending before that court and also rightly come to the conclusion that the attempt of the petitioners is only to prolong the old case pending before the court and nothing more.

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So, under such circumstances, this Court do not find any reason to interfere with the order rejecting the application for transfer by the District Judge and the petition lacks merit and the same is hereby dismissed. If the petitioners want to stay the proceedings in O.S.No.1561/2012 which according to the petitioners, is in respect of the same subject matter in the other suit,

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Tr.P.(C)No.595 of 2016 : 7 :

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their right to file an application under Section 10 before the court below and the court below passing appropriate orders in that application is not affected by the dismissal of this petition.

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Registry is directed to communicate this order to the

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courts below at the earliest.

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Sd/- K.Ramakrishnan, Judge.

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Bb/04/11/2016

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[True copy]

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P.A to Judge

Sarojini v. Justin Rajkumar

Case brief

What is this about?

What did the court decide?

Sarojini v. Justin Rajkumar

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

Parties & counsel

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