IN THE HIGH COURT OF KERALA AT ERNAKULAM
Tr.P(C).No. 172 of 2009()
1. G.ARUNKUMAR,'SARANYA',CHANTHANAVILA,
... Petitioner
2. G.AJITH KUMAR,'SARANYA',CHANTHANVILA,
3. SREEDHARAN NAIR,PADINJAREKUNNUMPURATHU
Vs
1. ALEXANDER VARGHESE,T.C.29/1235,
... Respondent
For Petitioner :SRI.C.M.STEPHEN
For Respondent : No Appearance
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :28/07/2009
O R D E R
S.S.SATHEESACHANDRAN, J.
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Tr.P.(C).NOS.172 & 173 OF 2009 ()
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Dated this the 28th day of July, 2009
O R D E R
These transfer petitions have been filed under
Section 24 of the Code of Civil Procedure. In
Tr.P.(C).No.172/2009, the petitioner seeks the transfer of
O.S.No.923/2007 from the file of the II Additional Munsiff
Court, Thiruvananthapuram to the II Additional Sub Court,
Thiruvananthapuram so as to have a joint trial with
O.S.No.330/2007 pending before that court. In Tr.P.(C).
No.173/2009, the common petitioner seeks transfer of
O.S.No.1024/2006, which at the time of the filing of the
petition was pending before the III Additional Munsiff Court,
Thiruvananthapuram but later transferred to Principal Munsiff
Court, Thiruvananthapuram on administrative reasons, to the
II Additional Sub Court, Thiruvananthapuram to have a joint
trial of the case with O.S.No.330/2007 pending before that
court.
TPC.172 & 173/09 2
2. Govt.Pleader has taken notice for the 1st respondent,
and for the 2nd respondent, its Standing Counsel appeared.
So far as the respondent in Tr.P.(C).No.172/2009, the
petitioner has produced a memo evidencing service of notice
on the counsel appearing for him in the court below. I am
satisfied that proper service has been effected, and service on
that respondent is declared sufficient.
3. I heard the counsel on both sides. The common
petitioner has filed a suit as O.S.No.1024/2006 for a decree of
prohibitory injunction, in which, the respondents are the
Special Tahasildar (Land Acquisition) and
Thiruvananthapuram Development Authority (TRIDA),
Vazhuthacaud. The defendants in that suit are taking hasty
steps without authority to demolish a shop under his
occupation situated beside Nandavanam town in Vanchiyoor
Village, was the case pleaded to seek the relief of injunction in
the above suit. It is the case of the petitioner that after an
interim order of injunction was passed in that suit, flouting
that order, the defendants demolished the building with other
TPC.172 & 173/09 3
structures close by to that building. So, in effect, the relief
claimed in the suit has become infructuous. Further more,
I notice that the 1st defendant in the suit is a government
officer and the State having not been impleaded as a
co-defendant as mandated under Order XXVII Rule 5 of CPC,
the maintainability of the suit may also arise for consideration
before the court. The transfer of that case with another case
for joint trial, whatever be the identity of the issues involved,
in the above circumstances, may be a futile exercise. In that
view of the matter, I find the transfer requested in Tr.P.(C).
No.173/2009 to transfer O.S.No.1024/2006 presently on the
file of the Principal Munsiff Court, Thiruvananthapuram to the
II Additional Sub Court, Thiruvananthapuram cannot be
entertained. Then with respect to the other transfer petition
Tr.P.(C).No.172/2009 relating to the transfer of
O.S.No.923/2007 which is filed by the respondent herein as
plaintiff after the demolition of the structures by the TRIDA,
seeking a decree of perpetual prohibitory injunction to
restrain the defendants in that suit, the petitioner and two
others, from trespassing upon the site where the structures
had been demolished and putting up any new construction, I
TPC.172 & 173/09 4
find the joint trial of that case with a suit for damages
preferred by the petitioners as plaintiffs is not at all necessary.
The cause of action in the two suits is not identical and the
issues to be considered in the suits are also different from one
another, and so much so, whatever be the identity of the
parties involved in the suit that alone is not sufficient to
transfer that case to the Sub court where the suit filed by
the petitioners to claim damages contending that the action of
the TRIDA was unauthorised, in which I find the plaintiff in
O.S.No.923/2007 has not been made a defendant, is not
warranted and also cannot be allowed. Suit for claiming
damages has to be separately tried, and not in association with
the other two suits in respect of which transfers are sought by
these petitioners.
Both the transfer petitions are dismissed.
S.S.SATHEESACHANDRAN
JUDGE
prp
TPC.172 & 173/09 5