Partly allowed

Alphonse Perera v. Maneesha

Kerala HC22 Nov 2018OP(C)/3089/2017

Case brief

AI extract

What is this about?

The High Court at Ernakulam allowed a petition challenging an order dismissing an application for joint trial. The Court set aside the impugned order, directed the Munsiff's Court at Punalur to try O.S.No.134/2008 and O.S.No.443/2014 jointly, and directed disposal within four months.

What did the court decide?

Impugned order dated 13.10.2017 in I.A.No.1831/2017 set aside. O.S.No.134/2008 allowed to be tried jointly with O.S.No.443/2014. Lower court directed to dispose within four months.

Alphonse Perera Vs Maneesha — Property and Title | Kerala HC (2018)

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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 N.ANIL KUMAR

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THURSDAY, THE 22ND DAY OF NOVEMBER 2018 / 1ST AGRAHAYANA, 1940

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OP(C).No.3089 of 2017

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AGAINST THE ORDER/JUDGMENT IN I.A.No.1831/2017 IN

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OS 134/2008 of MUNSIFF'S COURT, PUNALUR DATED 13-10-2017

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PETITIONER/PETITIONER/2nd DEFENDANT :

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ALPHONSE PERERA, AGED 67 YEARS, SON OF LATE JOSEPH PERERA, KALISSERI HOUSE, KAUMUDI NAGAR 33, PALLITHOTTAM, KOLLAM-691006.

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BY ADVS. SRI.B.ASHOK SHENOY SRI.P.N.RAJAGOPALAN NAIR SRI.P.S.GIREESH

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SRI.RIYAL DEVASSY

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RESPONDENTS:RESPONDENTS/PLAINTIFFS & DEFENDANT Nos.1&3:

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1 MANEESHA

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EVERSHINE, AARAM PUNNA WARD, VILAKKUDI PO,PUNALUR-691508.

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2 MAYA, EVERSHINE, AARAM PUNNA WARD, VILAKKUDI PO,PUNALUR. 691508.

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3 MANOJ, EVERSHINE, AARAM PUNNA WARD, VILAKKUDI PO,PUNALUR-691508.

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4 JUSTUS PERERA, MORNING STAR,VILAKKUDY, PUNALUR.691508.

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5 FREDITTAMMA BERTIE, FABI, PATTATHANAM, KOLLAM.691021.

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6 ESTHER M.A., EVERSHINE, AARAM PUNNA WARD, VILAKKUDI PO, PUNALUR-691508.

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BY ADV. SRI.VINOY VARGHESE KALLUMOOTTILL

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 22.11.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP(C).No.3089 of 2017

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..2..

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JUDGMENT

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Challenging the order dated 13.10.2017 in I.A.No.1831/2017 in O.S.No.134/2008 on the file of the Munsiff's Court, Punalur, the petitioner/second defendant preferred this Original Petition.

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The petitioner is the second defendant in O.S.No.134/2008 on the file of the Munsiff's court, Punalur whereas respondent Nos.1 to 3 are the plaintiffs in the suit and respondent Nos.4 and 5 are defendant Nos.1 and 3

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respectively in the said suit. The said suit is filed by respondents 1 to 3 as plaintiffs with the first respondent-minor through the sixth respondent who is her next friend as against the petitioner and respondent Nos.4 and 5 and also their father-Joseph Perara seeking a decree for partition over plaint 'A' to 'D' schedule properties allotting them 1/4^th share in it and also for setting aside settlement deeds in respect of plaint 'E', 'F' & G' schedule properties.

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OP(C).No.3089 of 2017

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Yet another suit, O.S.No.443/2014 was filed by the very same plaintiffs in the former suit along with the 6^th respondent herein as against the very same defendants in the former suit for partition in respect of 'E', 'F', 'G', 'H', 'I' & J' schedule properties.

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Since common questions of law and facts arise between the same parties in the above cases, the petitioner filed Ext.P3 application before the court below for joint trial of the suits. The court below by virtue of Ext.P4 order dated 13.10.2017 dismissed the I.A. with costs finding that it is belated and the reasons for joint trial of the suit is not tenable. Going by the facts of the case, it is very clear that the properties involved in the former suit are subject matter of the latter suit between the same parties. The learned counsel for the respondent also submitted that the court below ought to have allowed the application instead of dismissing the same. On a consideration of the entire facts and circumstances of this case, this Court is of the view that, Ext.P4 order is illegal and vitiated by errors of jurisdiction and law.

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OP(C).No.3089 of 2017

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..4..

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In the result, Ext.P4 order is set aside. O.S.No.134/2008 on the file of the Munsiff's Court, Punalur is allowed to be tried jointly with O.S.No.443/2014 pending before the said court. Considering the fact that the suit is of the year 2008, the lower court is directed to dispose of the case within a period of four months from the date of receipt of a certified copy of this judgment.

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Sd/- N.ANIL KUMAR, JUDGE

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skj

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OP(C).No.3089 of 2017

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..5..

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF PLAINT IN O.S NO.134 OF 2008 DATED 9.4.2008 BEFORE THE MUNSIFF'S COURT, PUNALUR, FILED BY RESPONDENTS NOS.1 TO 3

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EXHIBIT P2 TRUE COPY OF WRITTEN STATEMENT IN O.S NO.134 OF 2008 DATED 29.8.2016 BEFORE THE MUNSIFF'S COURT, PUNALUR, FILED BY PETITIONER.

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EXHIBIT P3 TRUE COPY OF INTERLOCUTORY APPLICATION -I.A NO.1831 OF 2017 IN O.S 134 OF 2008 BEFORE THE MUNSIFF'S COURT, PUNALUR FILED BY PETITIONER.

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EXHIBIT P4 TRUE COPY OF THE ORDER DATED 13.10.2017 IN I.A NO.1831/2017 IN O.S NO.134/2008 BEFORE THE MUNSIFF'S COURT, PUNALUR.

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EXHIBIT P5 TRUE COPY OF PLAINT IN O.S NO.443 OF 2014 DATED 1.9.2014 BEFORE THE MUNSIFF'S COURT, PUNALUR FILED BY RESPONDENTS NOS.1 TO 3 AND 6.

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EXHIBIT P6

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TRUE COPY OF WRITTEN STATEMENT IN O.S NO.443 OF 2014 DATED 27.2.2015 BEFORE THE MUNSIFF'S COURT, PUNALUR, FILED BY PETITIONER.

Alphonse Perera v. Maneesha

Case brief

What is this about?

What did the court decide?

Alphonse Perera v. Maneesha

Case brief

What is this about?

What did the court decide?

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