Kerala High Court
Rajan Skaria vs Vincykutty Mathew @ Vincy Rajan on 3 September, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
FRIDAY, THE 3RD DAY OF SEPTEMBER 2021 / 12TH BHADRA, 1943
TR.P(C) NO. 726 OF 2019
AGAINST THE ORDER/JUDGMENT IN OS 658/2015 OF MUNSIFF COURT,
THIRUVALLA, PATHANAMTHITTA
PETITIONER/S:
RAJAN SKARIA
AGED 62 YEARS
S/O. LATE SKARIA, AZHAKATHUMANNIL, PERUMPETTY MURI,
MALLAPPALY, PATHANAMTHITTA DISTRICT - 689592.
BY ADV G.UNNIKRISHNAN
RESPONDENT/S:
1 VINCYKUTTY MATHEW @ VINCY RAJAN
W/O. RAJAN SKARIA, AZHAKATHUMANNIL, PERUMPETTY MURI,
MALLAPPALLY, PATHANAMTHITTA DISTRICT - 689592.
2 RENESH MATHEW RAJAN
AGED 32 YEARS
S/O. RAJAN SKARIA, - DO-
3 REJO ZACHARIAH RAJAN
AGED 35 YEARS
S/O. RAJAN SKARIA, - DO-
4 THOMAS VARGHESE @ KUNJUMON
S/O. VARGHESE, OOTHINILKUNNATHIL HOUSE, MALLAPPALLY -
689592.
BY ADV SRI.ARUN BABU
THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
03.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
TR.P(C) NO. 726 OF 2019
2
JUDGMENT
The petitioner seeking the transfer of two original suits,
O.S.No.103 of 2013 and O.S.No.658 of 2015, pending before
the Munsiff Court, Thiruvalla to the Family Court, Thiruvalla,
where O.P.(DIV) 643 of 2013, O.P.No.140 of 2017,
O.P.No.1025 of 2013 and O.P.No.273 of 2017 are pending.
The parties in this original petition are: the
petitioner/husband, first respondent/wife, respondents 2 and
3/children and 4th respondent/a stranger. O.P.(DIV) No.643
of 2013 is filed by the petitioner against the first respondent
seeking divorce. O.P.No. 140 of 2017 is filed by the first
respondent against the petitioner seeking return of
patrimony. O.P.No.1025 of 2013 is filed by respondents 1
and 2, seeking injunction against the petitioner and third
respondent. Therein, the petitioner has raised a counter
claim. O.P.No.273 of 2017 is a suit for declaration of title
TR.P(C) NO. 726 OF 2019
and recovery of possession filed by the petitioner against
respondents 1 to 3. The Family Court has ordered joint trial
of the aforementioned petitions. Among the suits,
O.S.No.103 of 2013 is filed by the petitioner seeking
injunction against respondents 1 and 2 from trespassing into
his property and O.S.No.658 of 2015 is filed by the third
respondent seeking to injunct the petitioner and the fourth
respondent. The fourth respondent is arrayed as a party
alleging that he is an employee of the petitioner and in
collusion with the petitioner, is obstructing the third
respondent from entering the plaint schedule property.
2. Sri. K. Saneesh, learned Counsel for the petitioner
submitted that the dispute involved in the two suits is also in
relation to the circumstances arising out of the marital
relationship between the petitioner and the first respondent.
Further, the property involved, as also the parties, except the
fourth respondent, are the same in all the cases. It is
TR.P(C) NO. 726 OF 2019
contended that transfer of the suits is necessary to avoid
multiplicity of proceedings and divergent decisions. Reliance
is placed on the decision of this Court in 2015(5) KHC 365
to contend that a wider meaning should be given to Section
7(1)(d) of the Family Courts Act, while dealing with
circumstances arising out of marital relationship.
3. Sri. Arun Babu, learned Counsel appearing for
respondents 1 to 3 raised a preliminary objection that a
single transfer petition seeking transfer of two suits is not
maintainable. The further contention is that the first
respondent was not a party when O.S.No.103 of 2013 was
originally filed and the first respondent/wife was
subsequently impleaded. According to the learned Counsel,
that will not bring the suit within the purview of Section 7(1)
(d) of the Family Courts Act, as it was not relating to any
circumstances arising out of marriage, when it was filed.
TR.P(C) NO. 726 OF 2019
4. Replying to the contention regarding
maintainability, learned Counsel for the petitioner placed
reliance on the decision of this Court in 2016 (1) KHC 678
wherein, after referring to Rule 57(3) of the Kerala Civil
Rules of Practice, it is clarified that a single transfer petition
can be filed seeking transfer of more than one suit, provided
a separate interlocutory application for the purpose is filed.
Learned Counsel points out that such an application has
been filed in this original petition.
5. The contention that the first respondent was not a
party at the time of filing of O.S.No.103 of 2013 and hence
the dispute will not fall under Section 7(1)(d), is liable to be
rejected since, the second respondent, one among the
children born in the wedlock was a defendant and the first
respondent/wife was also subsequently impleaded. As such,
it is also a suit arising out of the marital relationship. For
the aforementioned reasons, I find the prayer for transfer to
TR.P(C) NO. 726 OF 2019
be well founded.
Accordingly, the Transfer Petition is allowed,
O.S.No.103 of 2013 and O.S.No.658 of 2015 on the files of
Munsiffs Court, Thiruvalla shall forthwith be transferred to
the Family Court, Thiruvalla to be taken up with O.P.(DIV)
643 of 2013 and connected cases.
SD/-
V.G.ARUN
JUDGE
RK
TR.P(C) NO. 726 OF 2019
APPENDIX OF TR.P(C) 726/2019
PETITIONER ANNEXURE
ANNEXURE I TRUE COPY OF O.P.(DIV) NO.643/2013
BEFORE THE FAMILY COURT, THIRUVALLA.
ANNEXURE II TRUE COPY OF THE OBJECTION IN O.P.(DIV)
NO.643/2013 BEFORE THE FAMILY COURT,
THIRUVALLA.
ANNEXURE III TRUE COPY OF O.P.NO.1025/2013 BEFORE THE
FAMILY COURT, THIRUVALLA.
ANNEXURE IV TRUE COPY OF THE OBJECTION WITH COUNTER
CLAIM IN O.P.1025/13 BEFORE THE FAMILY
COURT, THIRUVALLA.
ANNEXURE V TRUE COPY OF O.P.140/2017 BEFORE THE
FAMILY COURT, THIRUVALLA.
ANNEXURE VI TRUE COPY OF OBJECTION IN O.P.140/2017
BEFORE THE FAMILY COURT, THIRUVALLA.
ANNEXURE VII TRUE COPY OF O.P.273/2017 BEFORE THE
FAMILY COURT, THIRUVALLA.
ANNEXURE VIII TRUE COPY OF OBJECTION IN O.P.273/2017
BEFORE THE FAMILY COURT, THIRUVALLA.
ANNEXURE IX TRUE COPY OF PLAINT IN O.S.103/2013 OF
THE MUNSIFF'S COURT, THIRUVALLA.
ANNEXURE X TRUE COPY OF PLAINT IN O.S.658/15 OF THE
MUNSIFF'S COURT, THIRUVALLA.
ANNEXURE XI TRUE COPY OF THE WRITTEN STATEMENT IN
TR.P(C) NO. 726 OF 2019
O.S.658/15 OF THE MUNSIFF'S COURT,
THIRUVALLA.
RESPONDENT'S EXHIBIT: NIL
