ROSAMMA JOSEPH Vs. P C SEBASTIAN

JUDGEMENT

(1.) The petitioner in O.P. (TP.) No. 25 of 1994 on the file of the District Court, Kottayam, is the revision petitioner. This petition was filed under S.24 of the Code of Civil Procedure, seeking for an order withdrawing O.S. No. 319 of 1992 from the file of the Munsiffs court, Changanacherry and transferring the same to the Sub Court, Kottayam, to be tried along with O.S. No. 811 of 1992. After the enquiry the above petition was dismissed by the court below as per order dated 30.5.1994. The present revision is filed against the said order passed by the District Judge, Kottayam.

(2.) The facts involved in this case can be summarised thus: O.S. No. 319 of 1992 was filed by the respondent in this revision petition, before the Munsiffs Court. Changanacherry, in which the petitioner is the first defendant. That was a suit for redemption of the possessory mortgage and relief is sought only against the petitioner. The second defendant in that suit is the daughter of the petitioner, who is conducting a beauty parlour in the petition schedule building. Third defendant is the husband of the first defendant. The property involved in the suit is two shop rooms, specifically described in the plaint schedule property. The said two rooms were in the possession of the petitioner. In respect of these two rooms the father of the petitioner had executed a settlement deed in favour of the respondent, pursuant to a compromise decree in O.S. 281/81. However, the petitioner continued in possession of the rooms. It is alleged that the respondent had agreed to sell these two rooms for a consideration of Rs. 50,000/-payable in monthly instalments of Rs. 2,500/- to the petitioner. The petitioner remitted the entire consideration, but the respondent refused to execute the sale deed, though he had agreed to execute the same on or before 30.5.1992. Instead of doing so, he sent a notice to the petitioner alleging that she had executed a mortgage deed mortgaging the said two rooms to the respondent on 24.4.1987 as per document No 1040/87. Therefore, the respondent filed the suit, O.S. 319/ 92, on 28.7.1992 in the Munsiffs Court, Changanacherry against the petitioner for redemption of the mortgage. The case of the petitioner is that the said suit was not maintainable. However, the petitioner thereafter filed O.S. No. 811 of 1992 on 16.6.1992 before the Sub Court, Kottayam for specific performance of the agreement for sale of these two rooms. The defendant in that suit is the respondent herein who is the plaintiff in O.S. No. 319 of 1992.

(3.) The respondent in this case entered appearance in the petition for transfer before the court below. However, he did not file any counter statement. After the hearing, the court below dismissed the petition. While so dismissing the petition, the court below observed that though the parties and subject matter of the two suits are one and the same, there was no common question of law and facts in these two suits.