Point of Law: Transfer of civil proceedings - When an appeal is filed under Section 5(i) of Kerala High Court Act, 1958 against order passed under Section 24 of Code of Civil Procedure by a learned Single Judge, Division Bench must be reluctant to interfere in matter unless it is manifestly illegal and erroneous or carrying grave or substantial injustice.

JUDGMENT :

Anil K. Narendran, J.

The appellant is the petitioner in Tr.P.(C) No.183 of 2020, a transfer petition filed before this Court under Section 24 of the Code of Civil Procedure, 1908, seeking an order to transfer O.S.No.57 of 2020 pending before the Munsiff Court, Kayamkulam to the Sub Court, Ottapalam, for being jointly tried along with O.S.No.20 of 2020 pending before that Court. By the order dated 13.07.2021, the learned Single Judge dismissed Tr.P.(C) No.183 of 2020. Feeling aggrieved, the appellant has filed this Tr.Appeal, under Section 5 of the Kerala High Court Act, 1958.

2. Heard the learned counsel for the appellant, the learned counsel for the 1st respondent and also the learned counsel for the 2nd respondent.

3. The 1st respondent herein filed O.S.No.57 of 2020 before the Munsiff Court, Kayamkulam, on 11.02.2020, against the appellant herein and his brother, the 2nd respondent herein, seeking permanent prohibitory injunction restraining them from trespassing into the plaint schedule property. The 1st respondent filed the said suit, claiming to be a ‘live-in partner’ of M.S. Chitra, the deceased mother of the appellant and the 2nd respondent, and sought for permanent prohibitory injunction based on his alleged possession, ownership and enjoyment of the plaint schedule property, on the strength of an unregistered Will dated 06.10.2019, alleged to have been executed by M.S. Chitra. The reliefs sought for in O.S.No.57 of 2020 read thus;

4. The 2nd respondent herein filed O.S.No.20 of 2020 before the Sub Court, Ottapalam, on 21.02.2020, against the appellant, his father V. Mohanan and the 1st respondent herein, a suit for partition, seeking partition and allotment of one half share in the properties left behind by M.S. Chitra. Plaint A schedule property in O.S.No.20 of 2020 is situated at Ottapalam in Palakkad District and plaint B schedule property (the plaint schedule property in O.S.No.57 of 2020 on the file of the Munsiff Court, Kayamkulam) is situated at Bharanikkavu in Alappuzha District.

5. The appellant filed Tr.P.(C) No.183 of 2020 before this Court, seeking an order to transfer O.S.No.57 of 2020 pending before the Munsiff Court, Kayamkulam to the Sub Court, Ottapalam, for being jointly tried along with O.S.No.20 of 2020 pending before that Court, contending that common issues of facts and law arise for adjudication in the two suits. The plaint schedule property in O.S.No.57 of 2020, which is situated at Bharanikkavu in Alappuzha District is plaint A schedule property in O.S.No.20 of 2020, the suit for partition filed before the Sub Court, Ottapalam. The dispute relating to the unregistered Will dated 06.10.2019 alleged to have been executed by M.S. Chitra will have to be adjudicated in both the suits. The trial of both the suits in different courts may lead to possible conflicting decisions and also wastage of judicial time.

6. In Tr.P.(C) No.183 of 2020, the 1st respondent filed counter statement through counsel, contending that he is in possession and enjoyment of the plaint schedule property in O.S.No.57 of 2020 on the file of the Munsiff Court, Kayamkulam, on the strength of an unregistered Will executed by M.S. Chitra, on 06.10.2019. He filed that suit when the appellant along with few of his relatives tried to trespass into that property. After the receipt of notice in O.S.No.57 of 2020, the 2nd respondent filed O.S.No.20 of 2020 before the Sub Court, Ottapalam, without the actual legal heirs of M.S. Chitra in the party array. Chitra had properties in Thrissur District and her mother is still alive, who has a rightful share in her properties. The appellant, with an intention to stall the proceedings in O.S.No.57 of 2020 pending before the Munsiff Court, Kayamkulam, filed transfer petition before this Court, suppressing the fact that M.S. Chitra had executed an unregistered Will in favour of the 1st respondent. The said fact has been suppressed in O.S.No.20 of 2020 filed by the 2nd respondent. It is only