IN THE HIGH COURT OF KERALA AT ERNAKULAM
Tr P(C) No. 215 of 2007()
1. DHAVAMONY,
... Petitioner
2. LEKSHMI AMMAL,
3. VINOD,
4. SAKTHIDEVI,
Vs
1. P. MADHAVAN,
... Respondent
For Petitioner :SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL)
For Respondent :SRI.B.S.SWATHY KUMAR
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :15/01/2008
O R D E R
M.N.KRISHNAN, J.
--------------------------
Tr.P.C. NO. 215 OF 2007
---------------------
Dated this the 15th day of January, 2008
ORDER
This petition is filed with a prayer to transfer O.S. 213/07
pending before the Munsiff’s Court, Mavelikara, to Subordinate
Judge’s Court, Mavelikkara, for trial and disposal of the case along
with O.S. 122/07, pending in that court. O.S. 213/07 pending before
the Munsiff’s Court, Mavelikara, is a suit filed for fixation of the
boundary by the respondent herein. O.S. 122/07 is filed by the 1st
petitioner herein against the respondent for specific performance of
the contract.
2. Learned counsel for the transfer petitioner had invited my
attention to Para 8 of the plaint in O.S. 122/07. There is a recital
therein that “the plaint schedule is in the possession of plaintiff and it
lies contiguous with other property. The oven or Bormah overlaps to
plaint schedule.”
3. It is true that the property involved in these two cases are
the same. But the sphere of consideration in both cases does not
appear to be the same. In the suit for specific performance of a
Tr.P.C. No.215/07 2
contract, what the court has to find out is whether there is an
agreement for sale and whether the plaintiff is ready and willing to
perform part of the contract and whether the defendant has
committed a breach of contract. In a suit for fixation of boundary,
what the court has to find out is which is the boundary separating the
properties. In such case, the neighbouring owners are also
impleaded as parties so that all the four sides can be considered and
the boundary can be fixed. So just because the properties are the
same and there is a dispute pending between the parties regarding
the fixation of boundary, it may not be correct to direct the
Subordinate Judge to try the case, which is pending in the Munsiff’s
Court, unless it is really necessary to have a joint trial of the case.
From the discussion above, I feel that a joint trial is not
necessary and the issue for consideration in both cases are different,
which requires independent evaluation. So I hold that there need not
be any transfer of the case.
The transfer petition is accordingly dismissed.
M.N.KRISHNAN, JUDGE
vps
Tr.P.C. No.215/07 3