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2016 DIGILAW 510 (KER)

Ahammed Rawther v. Kalamala Muslim Palli

2016-06-16

K.HARILAL

body2016
JUDGMENT : K. Harilal, J. The petitioners in Original Petition(Civil) No. 680 of 2016 are the additional defendant Nos. 20 - 27 and the respondents are plaintiffs and other defendants, in Original Suit No. 265 of 2011 of the Sub Court, Pathanamthitta. The suit is filed, praying for the settlement of a new scheme with respect to the administration of property owned by the 1st respondent, Mosque. The petitioner in Original Petition (Civil) No. 681 of 2016 is the plaintiff in Original Suit No. 272 of 2012 of the aforesaid court and the respondents are defendants therein. This suit is filed for declaration of title with respect to the property owned by the Mosque, ignoring the partition deed executed with respect to some portion of the aforesaid property. 2. The petitioners in Original Petition(Civil) No. 680 of 2016, who are the additional defendants in Original Suit No. 265 of 2011, filed Interlocutory Application No. 20 of 2016 in Original Suit No. 265 of 2011, seeking joint trial with Original Suit No. 272 of 2012 of the same court. But, the trial court dismissed the said application, by Ext.P6 order in Original Petition (Civil) No. 680 of 2016. Similarly, the petitioner in Original Petition (Civil) No. 681 of 2016, who is the plaintiff in Original Suit No. 272 of 2012 filed Interlocutory Application No. 42 of 2016 in Original Suit No. 272 of 2012, seeking joint trial with Original Suit No. 265 of 2011. But, the trial court dismissed the said application, by Ext.P5 order in Original Petition (Civil) No. 681 of 2016. Thus, legality and correctness of the reasonings, whereby the applications filed in both suits, Original Suit Nos. 265 of 2011 and 272 of 2012, for joint trial, stand dismissed, are challenged in these Original Petitions (Civil). 3. Heard the learned counsel for the petitioners and the learned counsel appearing for the respondents. 4. On a reading of the impugned orders under challenge, it appears that the reasons, whereby the applications stand rejected, are one and the same, though orders are passed separately. Prima facie, this Court is not satisfied with the manner, in which the trial court has considered an application, seeking joint-trial of two suits. The sole consideration of the trial court was confined to the question, whether the parties are same in both suits, only. Prima facie, this Court is not satisfied with the manner, in which the trial court has considered an application, seeking joint-trial of two suits. The sole consideration of the trial court was confined to the question, whether the parties are same in both suits, only. Apparently, the court below omitted to consider the circumstances, which require to be considered in an application, seeking joint-trial. At the first blush, it may appear that convenience of the parties, where the parties are same in both suits, is the main ground for a joint-trial; but legally it is not correct. 5. It is true that there is no specific provision in the Code of Civil Procedure, 1908 (hereinafter referred to as 'the C.P.C.'), describing the circumstances under which a joint-trial petition can be allowed. But, the circumstances under which joint-trial petition can be allowed derives from Order I Rules 1 and 3 of the C.P.C. That apart, the question to be essentially considered is, whether the issues framed in both suits are intricately connected with each other and if separate trial is conducted, whether there is any chance of conflicting decisions, on the issues separately framed in both suits? 6. Another fact has to be considered is, whether the evidence to be adduced in both suits are common and the subject matter of the suits are same. Even if, the relief’s sought for are different, if the issues framed in one suit would come ancillary or corollary to the issue framed in the other suit, certainly, both issues must be tried together. Otherwise, if the main issue framed in one suit is determined earlier, the issue which comes ancillary to the main issue in the subsequent suit would become infructuous or redundant. If any of the parties in the subsequent suit is not a party in the earlier suit, he will miss an opportunity to address the main issue, which would render the ancillary issue redundant or covered. Therefore, the nature of issues are the main criteria and the possibility to arrive at conflicting decisions and the possibility, which would make the other issue in the other suit redundant or covered, if tried separately, are also the circumstance under which a joint-trial can be allowed. 7. Therefore, the nature of issues are the main criteria and the possibility to arrive at conflicting decisions and the possibility, which would make the other issue in the other suit redundant or covered, if tried separately, are also the circumstance under which a joint-trial can be allowed. 7. This Court has considered the general circumstances under which joint-trial can be allowed in Navabharat Vignan Trust and Others v. Nasihudeen and Others [2013(1)KHC 1], which reads as follows: "Circumstances requisite to allow joint-trial are (1) A common question of law or common question of fact must arise from all such suits and (2) In all such suits, the right to relief must be in respect of or arising out of same act or transaction or same series of acts or transactions (3) All parties in the suit which is sought to be transferred must be present in the suit with which joint-trial is sought for. Therefore, the question to be considered in an application for joint-trial are whether these is any common question of law or fact in all such suits and whether there is any common question of law or fact in all such suits and whether the act or transaction which gives rise to a right to relief is common in all such suits." 8. Needless to say, in the instant case, the trial court has not considered the circumstances under which joint-trial can be allowed. The court below has considered the issue in a superficial manner, confining to the presence of the parties in both suits, only. Therefore, this Court is inclined to set aside the impugned orders Exts.P5 and P6, respectively in both Original Petitions and I do so. The matter is remitted back to the trial court for fresh consideration, in the light of the observations made above and judicial precedents laid down by this Court and the order shall be passed, at the earliest. 9. These Original Petitions (Civil) are disposed of accordingly.