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2000 DIGILAW 676 (MAD)

Sellammal and another v. Mookan and another

2000-07-14

FAKKIR MOHAMED IBRAHIM KALIFULLA

body2000
ORDER: This civil revision petition is directed against the order of the trial Court made in I.A.No.439 of 1999 in O.S.No.143 of 1993 rejecting the petitioners application for consolidating O.S.No.267 of 1995 on the file of the very same Court along with the present suit namely O.S.143 of 1993 for joint trial and for passing a common judgment by treating the evidence recorded in the suit as evidence in the other suit namely O.S.No.267 of 1995. 2. The said application filed under Sec.151 of C.P.C. was resisted by the respondents on the ground that the relief claimed in O.S.No.143 of 1993 and O.S.No.267 of 1995 were not similar and that the petitioners had filed the application only to drag on the proceedings. The trial Court dismissed the application on the ground that in the suit filed in O.S.No.267 of 1995, one Periyathal has also been added as a defendant apart from the present respondents, that the details of properties mentioned in O.S.No.267 of 1995 are different from the one mentioned in O.S.No.143 of 1993, and that therefore the suit property cannot be stated to be identical in both suits. The learned Judge further held that while separate trial was a general rule, consolidation of the suit is a special one and since there are no sufficient grounds for consolidating the suits, the application was not maintainable. 3. Mr.Govindarajan, the learned counsel for the petitioners reiterated the averments contained in the application and also placed reliance on the judgments reported in P.P.Gupta v. East Asiatic Company, A.I.R. 1980 All. 184 and Smt.Multivabuji v. Kalindi Vabuji, A.I.R. 1994 Guj. 42, in support of his contention that Sec.10 of C.P.C. will not be a bar for consolidation of two suits in which the issues involved are similar in nature. As against the contention of the learned counsel for the petitioners, Mr.R.Selva Kumar, the learned counsel appearing for the second respondent contended that by virtue of Sec.10 of C.P.C. further proceedings of the subsequent suit should be stayed awaiting the outcome of the earlier suit. He also placed reliance on the judgment of Patna High Court reported in Shri Ram Tiwari v. Bhadi Devi, A.I.R. 1994 Pat. 76 and the judgment of Punjab and Haryana High Court reported in M/s.O.P.Steel Traders v. M/s. Steel Strips Ltd., A.I.R. 1992 P. & H. 217. 4. He also placed reliance on the judgment of Patna High Court reported in Shri Ram Tiwari v. Bhadi Devi, A.I.R. 1994 Pat. 76 and the judgment of Punjab and Haryana High Court reported in M/s.O.P.Steel Traders v. M/s. Steel Strips Ltd., A.I.R. 1992 P. & H. 217. 4. The suit in O.S.No.143 of 1993 has been filed by the respondents herein for the relief of permanent injunction restraining the revision petitioners and their agents, servants and others from in any way interfering with their possession. The suit schedule property mentioned therein related to one situated in Ayan Punja S.No.494/6 in Valavanthi Majara, Pallinatham Village, Musiri Taluk, Tiruchirapalli District. The total extent of the land involved in the suit is 0.06 cents. The petitioners filed their written statement in the said suit. Subsequently O.S.No.267 of 1995 has been filed by the Revision Petitioners against the respondents herein and one Periyathal who is stated to be the mother of the respondents for the various reliefs in relation to the suit schedule properties. The claim of the petitioners in that suit was that the petitioners executed a sale deed in respect of a portion ‘A’ Schedule property in favour of respondents herein and as a reciprocal promise and consideration, the respondents executed another sale deed in favour of the petitioners in respect of ‘B’ schedule property and since disputes have arisen subsequently, they were obliged to file the suit for the relief prayed for in the suit. It is significant to note that the centre of controversy arose out of the property situated in Survey No.494/6, the suit property in O.S.No.143 of 1993. 5. Therefore on a reading of the plaint in both the suits, it transpires that the whole dispute has cropped up by reason of the execution of the sale deed at the instance of the petitioners in favour of the respondents in respect of the property situated in S.No.494/6 to an extent of 0.06 cents and the further sale deed executed by the respondents in favour of the petitioners by way of alleged reciprocal promise. Therefore, the adjudication of both the suits will have a bearing on the rights of the parties in respect of the property situated in S.No.494/6, and also the subsequent sale deeds in respect of certain other properties stated to be adjacent to the property in S.No.494/6 which are mentioned in schedule A to G in O.S.No.267 of 1995. Therefore it cannot be stated that the disposal of O.S.No.267 of 1995 will not have any bearing on the disposal of O.S.No.143 of 1993. This is not a case where the respondents have approached the Court for staying further proceedings of the subsequent suit in O.S.No.267 of 1995 under Sec.10, C.P.C. On the other hand, the application was one filed by the petitioners for consolidation of both suits so as to avoid multiplication of proceedings. In such circumstances, I feel consolidation of both the suits will be the proper course and it will be more beneficial to both parties inasmuch as the issue involved in both suits centres around the conveyance of the property situated in S.No.494/6. In such circumstances, in my opinion, Sec.10 will not have any application to the case on hand. Though Sec.10 of C.P.C., contemplates that the Court should not proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, it is to be noted that the said provision will not have direct application in respect of cases where parties seek for consolidation of the trial having regard to similarity of claims made in both suits. To put it differently, in my opinion, Sec.10, C.P.C. does not place an embargo in considering an application for consolidation of trial taking to account the similarity of the claim involved in two different suits in order to avoid multiplicity of proceedings. As it has been held by the learned Judge in the judgment reported in P.P.Gupta v. East Asiatic Company, A.I.R. 1980 All. 184, Sec.10 was not intended to take away the inherent power of the Court to consolidate in the interests of justice in different suits between the parties in which the matter in issue is substantially the same. As it has been held by the learned Judge in the judgment reported in P.P.Gupta v. East Asiatic Company, A.I.R. 1980 All. 184, Sec.10 was not intended to take away the inherent power of the Court to consolidate in the interests of justice in different suits between the parties in which the matter in issue is substantially the same. The learned Judge by relying upon the judgment of the Honourable Supreme Court reported in Trinath Singh v. Behitar Singh, 1955 S.C.C. 830, held that inasmuch as the essential nature of the dispute was the same and the question of law in each suit was common, it was eminently desirable that the suit should be consolidated and heard together. I am entirely in agreement with the said proposition of law laid down by the learned Judge while interpreting the implication of Sec.10 vis-a-vis an application filed under Sec.151 of C.P.C. for consolidation of the trial of two suits in which the issue involved was common. As stated earlier in the case on hand, the whole issue centres around the conveyance of the property situated in S.No.494/6. Therefore in the interests of justice as well as to avoid multiplicity of proceedings, it is always desirable to consolidate the trial of both suits. The trial Court while applying the principle that consolidation of suits, being a special rule, unfortunately failed to appreciate in the case on hand that common trial would be more advantageous and beneficial to the parties than having separate trial especially when the evidence to be recorded is going to be the same for both sides and the parties are also the same. It will also lessen the burden of the Court when two suits are tried together and a common judgment is recorded. I have also mentioned the reasons which would favour the consolidation of the suits in this case. 6. As far as the judgments relied upon by the learned counsel for the respondent, I find that those are all cases where the question about the consolidation of the trial was not focused while dealing with an application preferred under Sec.10 of C.P.C. Therefore those judgments will have no application to the facts of the present case. 7. In the circumstances, I find that the order of the trial Court is not sustainable in law. 7. In the circumstances, I find that the order of the trial Court is not sustainable in law. In the result, the civil revision petition is allowed directing the trial Court to try both O.S.No.143 of 1993 and O.S.No.267 of 1995 together by consolidating them by treating the evidence as common in both the suits and also pass a common judgment as prayed in I.A.No.439 of 1999 in O.S.No.143 of 1993. No costs.