The principle of res judicata is not applicable to all kinds of interlocutory orders, and joint trial is done in exercise of the inherent powers of the court.

M.R. Hariharan Nair, J.

1. Is the principle of res judicata applicable to an order of dismissal of an application for joint trial? This is the main question arising for decision in this revision.

2. The revision petitioners are the defendants in O.S. No. 473 of 1996 and the plaintiffs in O.S. No. 113 of 1998 both of the Munsiff's Court, Kannur. They filed an application for joint trial of the two suits in February, 1998 and it was dismissed as per a common order passed on 17.12.1998. Subsequently, they filed yet another application for the same relief and that was dismissed as per the impugned order finding that the earlier dismissal constituted res judicata for consideration of the second application.

3. Mr. K.V. Sohan, Advocate, who argued the case of the revision petitioners, took the stand that the principle of res judicata, as such, will not apply to procedural matters and that the question of joint trial relates to a matter of procedure. It is also argued by him that in the nature of the case joint trial of the two suits was essential. On the other hand, the learned counsel appearing for the 6th respondent asserts that the bar applied to the case in hand and that the dismissal of the petition as per the impugned order is well justified.

4. O.S.No.473 of 1996 was a suit seeking a permanent injunction retraining the revision petitioners from trespassing into the plaint schedule property; from committing waste therein and in any way interfering with the plaintiffs' enjoyment and possession of item No. 2 of the plaint schedule. The plaintiffs traced their title to the F.D. passed in O.S. No. 59 of 1981. After filing the written statement in the suit asserting title over the property and after contending that there was no question of granting injunction against them, they filed O.S. No. 113 of 1998 seeking a declaration that the final decree passed in O.S. No. 59 of 1981 in respect of the plaint schedule property and other properties was null and void and that the plaint schedule property actually belongs to plaintiffs and defendants 7 and 8 therein. There was also a prayer for injunction restraining defendants 1 to 6 therein from trespassing into the plaint schedule property and from committing waste therein.

5. The joint trial application filed by the present revision petitioners earlier as I.A. No. 781 of 1998 was disposed of by the Court below on 17.2.1998 with the following observations:

"If the contention in both suits are one and the same it is not necessary for a joint trial. On the other hand subsequently instituted suits can be stayed under S.10 CPC in view of this previously instituted suit. For that purpose it is not necessary to remove the suit from the list and wait for recently instituted suit (O.S. No. 113/98) to come up for trial which may take quite long time. Under the circumstances I find that these two petitions are not bona fide and as such these two petitions are dismissed."

It is the aforesaid order that is relied on as constituting res judicata and justifying dismissal of the second petition as per the impugned order passed on 23.11.1998.

6. The rival contentions have been considered. It is clear from a perusal of the above said order dated. 17.2.1998 that the Court below had not approached the question from the right perspective and bearing in mind the principles governing joint trials. The question whether conflicting decisions are likely to arise; whether joint trial will advance convenience in trial and similar other relevant aspects were not considered in the said order. On the other hand the Court appears to have been mainly influenced by the fact that the motion for joint trial came up at a time when the earlier suit stood listed for trial and the other had only commenced.

7. The Court below, in the said first order on the joint trial petition has taken the view that stay of later suit under S.10 of the CPC will meet the ends of justice. Actually there is something in common between stay of suit un