Though these proceedings originate from different orders in different suits, since the cause of action in the respective suits is the same, these petitions are disposed of by a common judgment. The facts are being referred to as are available in the original petition. 2. The 1st respondent before this Court seems to have instituted O.S.No.76/2010 before the Munsiff Court, Haripad. That was a suit for permanent prohibitory injunction seeking to restrain the petitioners before this Court from obstructing the right of use of C schedule pathway and tampering with the same detrimental to the plaintiff in the suit.
3. A schedule property shown in the plaint belongs to the plaintiff in the suit. B schedule property belongs to the defendant and C schedule is the disputed pathway. It is pointed out that a Commissioner was deputed in the said suit and he has filed a mahazar, report and plan. There is not much dispute regarding the fact that all the pleadings in O.S.No.76/2010 were complete and the suit was listed for trial to 05.03.2014. On that day, the plaintiff filed a petition as I.A.No.494/2014 for removing the case from the list. The reason given was that a suit namely, O.S.No.91/2014 has been instituted on 04.03.2014 and the issues that arise for consideration in that suit is similar to the one which arise in O.S.No.76/2010 so that a joint trial is necessary in the interest of all the parties.
4. The petitioners before this Court filed an objection to I.A.No.494/2014, petition to remove the case from the list. Then I.A.No.493/2014 was moved by the plaintiff in O.S.No.76/2010 seeking to have joint trial of O.S.No.76/2010 and the newly instituted suit namely, O.S.No.91/2014. To that also, the petitioners before this Court filed their objections. The petitioners later filed Ext.P9 petition as I.A.No.885/2014 in O.S.No.91/2014 contending that the suit is hit by Order 2 Rule 2 of the Code of Civil Procedure and that the plaint may be rejected on that ground. The respondents herein filed their objections on 11.08.2014. The parties were heard by the learned Munsiff and the learned Munsiff allowed the petition to remove the case from the list and also the petition praying for joint trial, and dismissed the petition for rejecting the newly instituted suit under Order 2 Rule 2 CPC.
5. The Civil Revision Petition is directed against the order in I.A.No.885/2014 disallowing the prayer for rejection of plaint in O.S.No.91/2014 and the original petition is directed against the order in I.A No.493/2014 allowing joint trial.
6. Learned counsel appearing for the petitioners in these petitions contended that it was highly mischievous on the part of the plaintiff in O.S.No.76/2010 to have sought for joint trial of the suit with a suit instituted on the previous day to which O.S.No.76/2010 was listed for trial. On the other hand, the entire pleadings in O.S.No.76/2010 was complete and it was ripe for trial. Further, learned counsel pointed out that joint trial cannot be adopted as a method to circumvent the provisions of Code of Civil Procedure. It is further pointed out that if there was any infirmity or defect in the pleadings or in the relief sought for in O.S.No.76/2010, two courses were open to the plaintiff. She could have either withdrawn the suit with liberty to file a fresh suit or she could have amended the plaint. Without doing so, instituting another suit on the same cause of action and praying for joint trial should not be countenanced. It is therefore pointed out that the order directing joint trial cannot be sustained.
7. Learned counsel appearing for the respondents, on the other hand, contended that though the parties are different, issues that may arise for consideration may have similarity and it is possible that a decision in one suit may have bearing on the other suit.
8. It is too early to say that the decision in O.S.No.76/2010 will or will not have a bearing on O.S.No.96/2014. But, one fact is very clear. The pleadings in O.S.No.76/2010 were complete and the suit was ripe for trial. Technically speaking, if another suit is filed on the same cause of action in which the matter in issue is also directly and substantially in issue in a previously instituted suit, the subsequent suit ought to be stayed under Section 10 CPC and that embargo cannot be got over by praying for joint trial. Whatever that be, order of joint trial cannot be sustained at all. There were no material before the court below to justify the decision to have joint trial of a newly instituted suit with a suit in which the pleadings were complete. Therefore, the order in I.A.No.493/2014 (Ext.P11) is set aside and the court below is directed to dispose of the matter in accordance with law.
9. As far as I.A.No.885/2014, petition filed by the petitioners seeking to have the plaint rejected under Order 7 Rule 11 CPC on the ground that the plaint is hit by Order 2 Rule 2 CPC is concerned, a reading of the order shows that the court below has not taken a final decision on the issue.
10. Learned counsel appearing for the petitioners contended that there is nothing to be gone into except the plaint in both the cases and that would clearly indicate that both the suits vest on the same cause of action and same reliefs are sought for and Order 2 Rule 2 CPC is squarely applicable to the facts of the case.
11. Learned counsel appearing for the respondents, on the other hand, pointed out that like the plea of res judicata, in a plea based on Order 2 Rule 2 CPC, unless the pleadings are complete and issues are raised, it may not be possible for the court to decide that the suit is barred by Order 2 Rule 2 CPC. According to the learned counsel, definite issue will have to be raised in that regard. It is further pointed out that the parties are different and plaint schedule properties are also different in both the cases.
12. Whatever that be, the lower court seems to be justified to a considerable extent in its finding to defer consideration of petition to reject the plaint in O.S.No.91/2014. It is too premature at this stage to enter a finding regarding the applicability of Order 2 Rule 2 CPC. As far as the precedents are concerned, there are decisions either way. However, the fact remains that the issue as to whether any one of the suits is barred by Order 2 Rule 2 CPC will have to be considered on the basis of pleadings, and issues will have to be raised for that purpose.
The court below though ultimately dismissed I.A.No.885/2014 in the earlier portion of the judgment has only deferred the consideration of that petition at a later point of time probably to be taken up after the completion of the pleadings. There seems to be nothing wrong in the approach adopted by the court below. However, it is made clear that the ultimate order directing dismissal of I.A.No.885/2014 is set aside and the court below will consider the petition at the appropriate stage.
These petitions are disposed of as above.
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P.BHAVADASAN JUDGE smp // True Copy // P.A. to Judge.