High Court Kerala High Court

Dhavamony vs P. Madhavan on 15 January, 2008

Kerala High Court
Dhavamony vs P. Madhavan on 15 January, 2008
       

  

  

 
 
  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