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Judgment
Thomas P. Joseph, J.—Writ Petition is in challenge of Ext.P6, order dated 22.06.2010 on I.A. No. 4077 of 2010 in O.S. No. 60 of 2009 of the court of learned Additional Sub Judge-II, Ernakulam. That is a suit for arrears of rent filed by respondent-plaintiff. Predecessor-in-interest of plaintiff filed O.S. No. 311 of 2005 in the court of Additional Sub Judge,-I, Ernakulam in respect of the same subject matter, it is not disputed before me and against petitioner herein for recovery of possession of the suit building, rent arrears and for damages for use and occupation from the date of suit. In O.S. No. 60 of 2009 trial has commenced in the sense that respondent has filed proof affidavit and marked his documents. In O.S. No. 311 of 2005 pre-trial steps are not completed in that applications filed for impleadment of respondent and for consequential amendment of the plaint are pending. While so petitioner filed Ext.P5, application in O.S. No. 60 of 2009 seeking stay of that suit until disposal of O.S. No. 311 of 2005 and claiming that if trial of O.S. No. 60 of 2009 is not stayed petitioner will be put to inconvenience and difficulties. Learned Additional Sub Judge, Ernakulam dismissed Ext.P5, application as per Ext.P6, order which is under challenge in this Writ Petition. I have heard counsel on both sides.
As I stated it is not disputed that it is in respect of the same subject matter that the two suits are pending. Only difference is that respondent who filed O.S. No. 60 of 2009 being the successor in office of the plaintiff in O.S. No. 311 of 2005 has sought his impleadment in the latter suit and for consequential amendment. According to the plaintiffs in O.S. No. 311 of 2005 lease in respect of the building expired on 31.12.2000 and hence the suit claiming rent arrears from April, 2002 to May, 2005 (at the rate of Rs. 7,850/- per month), eviction of petitioner and for damages at the rate of Rs. 1,000/- per month from June, 2005 onwards. In O.S. No. 60 of 2009 respondent claimed rent arrears from June, 2005 to June, 2008 (including the period for which damages for use and occupation claimed in O.S. No. 311 of 2005) at the rate of Rs. 7,850/- per month. It is in the above circumstances that petitioner sought stay of trial of O.S. No. 60 of 2009. Having heard counsel on both sides and also considering claims made in both the suits it appears to me that both the suits should be tried and disposed of by the same court and stay of O.S. No. 60 of 2009 until O.S. No. 311 of 2005 is disposed of is not the proper remedy. Otherwise there is possibility of divergent findings being entered. To avoid that, the suits must be consolidated in the same court though that is not the relief asked for in this Writ Petition.
Resultantly, this Writ Petition is disposed of in the following lines:
(i) O.S. No. 311 of 2005 pending in the court of learned First Additional Sub Judge, Ernakulam is withdrawn from that court and made over to the court of learned Second Additional Sub Judge, Ernakulam where O.S. No. 60 of 2009 is pending.
(ii) Parties shall co-operate and ensure that pre-trial steps in O.S. No. 311 of 2005 are completed without further delay.
(iii) Question whether O.S. No. 311 of 2005 and O.S. No. 60 of 2009 are to be tried jointly shall be decided by the learned Second Additional Sub Judge, Ernakulam after hearing the parties.
(iv) Trial of O.S. No. 60 of 2009 will stand in abeyance until O.S. No. 311 of 2005 is also brought for trial after completing the preliminary steps.
(v) Learned First Additional Sub Judge, Ernakulam shall transmit records of O.S. No. 311 of 2005 to the court of learned Second Additional Sub Judge, Ernakulam with intimation to counsel on both sides as to the date of appearance (which shall be to a nearest possible day) in the transferee court.