Dismissed

Chacko v. State of Kerala

Kerala HC15 Nov 2016Tr.P(C)/619/2016

Case brief

AI extract

What is this about?

The High Court, On a transfer petition seeking withdrawal of a suit pending before the Munsiff Court to be tried along with a second appeal, held that Section 24 does not apply for the purpose of trying a suit where evidence must be recorded. The court directed the parties to seek stay under Section 10 or 151 CPC at the trial court.

What did the court decide?

The transfer petition is dismissed in limine.

Chacko Vs State of Kerala — Civil Procedure and Limitation | 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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TUESDAY, THE 15TH DAY OF NOVEMBER 2016/24TH KARTHIKA, 1938

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Tr.P(C).No. 619 of 2016 ()

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OS 250/2010 OF MUNSIFF COURT, CHANGANACHERRY.

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PETITIONER/PLAINTIFF :

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CHACKO, S/O.MOSHA, VAZHAPARAMBIL HOUSE, SACHIVOTHAMAPURAM P.O., KURUCHI VILLAGE, CHANGANACHERRY TALUK.

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BY ADVS.SRI.M.P.MADHAVANKUTTY SRI.GOKUL DAS V.V.H. SMT.SMITHA PILLAI

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RESPONDENT(S)/DEFENDANTS :

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1. STATE OF KERALA, REPRESENTED BY DISTRICT COLLECTOR, KOTTAYAM - 686 001.

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2. RE-SURVEY SUPERINTENDENT, TALUK OFFICE, CHANGANACHERRY-686 532.

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3. TAHSILDAR, TALUK OFFICE, CHANGANACHERRY-686 532.

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4. VILLAGE OFFICER, VILLAGE OFFICE, KURUCHY-686 532.

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5. SECRETARY, KURUCHI GRAMA PANCHAYAT, KURUCHY-686532.

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6. BINU SCARIAH, S/O.C.P.SCARIAH, CHATHURATHUNDIYIL HOUSE, MANDIRA KAVALA BHAGOM, SACHIVOTHAPURAM P.O., KURUCHI VILLAGE, CHANGANACHERRY TALUK, KOTTAYAM, PIN-686 532.

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--2--

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--2--

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Tr.P(C).No. 619 of 2016 ()

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7. V.T.CHANDY, VADAKETHALAKKAL HOUSE, MANDIRA KAVALA BHAGOM, SACHIVOTHAPURAM P.O., KURUCHI VILLAGE, CHANGANACHERRY TALUK, KOTTAYAM,PIN-686 532.

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8. M.A.MATHUKUTTY, MUKKATTU HOUSE, MANDIRA KAVALA BHAGOM, SACHIVOTHAPURAM P.O., KURUCHI VILLAGE, CHANGANACHERRY TALUK, KOTTAYAM, PIN-686 532.

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R1 TO R4 BY SENIOR GOVT. PLEADER SRI.M.T.JOHNSON

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THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15-11-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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mbr/

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Tr.P(C).No. 619 of 2016 ()

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APPENDIX

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PETITIONERS' ANNEXURES:

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ANNEXURE	I :	TRUE COPY OF THE PLAINT IN OS.NO.250 OF 2010 BEFORE THE MUNSIFF’S COURT, CHANGANANCHERRY DATED NIL.
ANNEXURE	II	: TRUE COPY OF THE WRITTEN STATEMENT IN OS.NO.250 OF 2010 BEFORE THE MUNSIFF’S COURT, CHANGANACHERRY DATED 3.12.2010.
ANNEXURE	III	: TRUE COPY OF THE WRITTEND STATEMENT FILED BY RESPONDENTS 6 TO 8 IN OS.NO.250 OF 2010 BEFORE THE MUNSIFF’S COURT, CHANGANANCHERRY DATED NIL.
ANNEXURE	IV	: TRUE COPY OF THE PLAINT IN OS.NO.378/2010 BEFORE THE MUNSIFF’S COURT, CHANGANACHERRY DATED 15.11.2010.
RESPONDEN	TS'	ANNEXURES : NIL.
		//TRUE COPY//
mbr/		P.S. TO JUDGE

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K.RAMAKRISHNAN, J.

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=================== Transfer Petition (Civil) No.619 of 2016 ======================= Dated this the 15^th day of November, 2016

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ORDER

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This is an application filed by the petitioner seeking transfer

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of O.S.No.250 of 2010 pending before Munsiff CourtChanganacherry to This court to be disposed along with RSA800 of 2013 under Article 24 of the Code of Civil Procedure.

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It is alleged in the petition that petitioner is the plaintiff in Ext.P1 suit as O.S.No.250 of 2010 on the file of Munsiff Court, Changanacherry for fixation of boundary as per Survey and Boundaries Act and consequential injunction. There is a footpath having a width of 2 feet lying on the southern side of plaint item No.2. There is a road having a width of 3.5 metres and having a length of 500 metres lying on the north of plaint schedule properties that was included in the Road Register of 5^th respondent panchayath. Since there was some dispute arose regarding the item No.2 pathway, the above suit was necessitated. The panchayath filed Annexure A2 written statement disputing the width of the pathway and it is vested with the panchayath. Defendants 6 to 8 jointly filed written statement. They contended that there was an earlier suit between the parties as O.s.No.378 of

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Transfer Petition (Civil) No.619 of 2016 2

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2010 fied by them against the petitioner for mandatory injunction to demolish the southern boundary wall of item No.1 of property mentioned and the suit was decreed and appeal was filed AS 312 of 2011 before District Court Kottayam, that was also dismissed against which a second appeal has been filed before this Court as RSA 800 of 2013 and that is pending.. Respondents 6 to 8 were not made parties in Ext.P1 suit originally, they themselves got impleaded and they were set ex parte later and thereafter they entered appearance and filed written statement after getting the ex party order set aside. The written statement filed by them was produced as Annexure A3. Since the matter to be decided in both th cases are some, it is necessary that the suit pending before Munsiff's Court Changanacherry has to be withdrawn to this Court and to be disposed of along with RSA No.800 of 2013 pending before this Court. Hence this petition.

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Heard Shri. M.P.Madhavankutty, learned counsel for the petitioner, who argued that since the subject mater in both the cases are same, it is necessary that the same has to be withdrawn to this court. Further under Section 24 of the Code of Civil Procedure, this Court has the power to do the same.

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It is an admitted fact that there was an earlier

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Transfer Petition (Civil) No.619 of 2016 3

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proceedings between respondents 6 to 8 and present petitioner which has reached this court and pending as RSA 800 of 2013. The petitioner herein filed Ext.P1 suit as O.S.250 of 2010 before Munsiff's Court Changanacherry seeking certain reliefs against the Panchayath and the State without impleading respondents 6 to 8. They later got themselves impleaded and filed Annexure A3 written statement. Section 24 of the Code of Civil Procedure can be invoked by this Court, if the cases will have to tried in the original side by taking evidence by this Court not a suit pending for trial before Munsiff Court to be heard along with RSA No.800 of 2013. If at all the petitioner has got a case that the decision in RSA 800 of 2013 is likely to affect the result in O.S.250 of 2010, he can either move the court below either under Section 10 or Section 151 of Code of Civil Procedure, as the case may be to get that suit stayed, if it is allowable in accordance with law and if such an application is filed before that court, it is for the court to consider and pass appropriate orders on the application. So the remedy of the petitioner is not to file a petition under Section 24 of Code of Civil Procedure to withdraw that suit as this Court cannot under original jurisdiction try and dispose of the suit before the trial court, where evidence will have to be recorded before arriving at a

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Transfer Petition (Civil) No.619 of 2016 4

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finding regarding the rights claimed by the parties. So the prayer in the petition cannot be granted and the petition is liable to be dismissed in limine.

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So the petition is dismissed in limine with the above observations.

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Registry is directed to communicate this order to the concerned court immediately.

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K.RAMAKRISHAN, JUDGE

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SKV

Chacko v. State of Kerala

Case brief

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Chacko v. State of Kerala

Case brief

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