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2002 DIGILAW 1156 (RAJ)

Rughnath Ram S/o Pura Ram v. Smt. Radha W/o Panchu Ram

2002-07-04

B.S.CHAUHAN

body2002
JUDGMENT 1. - The only question involved in this case is as to whether the trial Court is permitted to take away the effect of the order passed under section 10 CPC staying the further proceedings in a subsequent suit in an application subsequently filed by another party under section 151 CPC for consolidation of the suits. 2. Arguments have been advanced by the learned counsel for the petitioner Shri Punia on the presumption as if the trial Court has a power to hear both the applications simultaneously, one filed under section 10 CPC by one party and another filed under section 151 CPC for consolidation of the suits filed by another party. 3. That situation is entirely different because in that situation, it may be permissible for the trial Court to dispose of both the applications by a common order and rejecting the application under section 10 CPC and allowing the application under section 151 CPC. 4. Shri Joshi and Shri Bhansali, learned counsel for the respondents, have vehemently submitted that as the application under section 10 CPC has already been decided and proceedings in the subsequent suit had been stayed, the trial Court, under the garb of deciding the application under section 151 CPC for passing an order for consolidation, cannot take away the effect of the order passed by it earlier under section 10 CPC for the reason that the said order passed under section 10 CPC attained finality as the revision preferred against that order has been dismissed by this Court. 5. It is settled proposition of law that what cannot be done "per directum is not permissible to be done per obliquum", meaning thereby, whatever is prohibited by law to be done, cannot legally be effected by an indirect and circuitous contrivance on the principle of "quando aliquid prohibetur, prohibetur et omne per quod devenitur ad illud". 6. In Jagir Singh v. Ranbir Singh, AIR 1979 SC 381 , the Apex Court has observed that an Authority cannot be permitted to evade a law by "shift or contrivance". 6. In Jagir Singh v. Ranbir Singh, AIR 1979 SC 381 , the Apex Court has observed that an Authority cannot be permitted to evade a law by "shift or contrivance". While deciding the said case, the Hon'ble Supreme Court placed reliance on the judgment in Fox v. Bishop of Chester, (1824) 2 B & C 635 , wherein it has been observed as under : "To carry out effectually the object of a statute, it must be construed as to defeat all attempts to do, or avoid doing in an indirect or circuitous manner that which it has prohibited or enjoined." 7. Law prohibits to do something indirectly which is prohibited to be done directly. [Vide : M.C. Mehta v. Kamal Nath & Ors., JT 2000 (7) SC 191. 8. Moreso, it is settled legal proposition that inherent powers under section 151 CPC cannot be resorted to when there are specific provisions in the Act to deal with the situation [vide Nain Singh v. Koonwarjee & Ors., AIR 1970 SC 997 and State of West Bengal & Ors. v. Karan Singh Vinayak & Ors., (2002) 4 SCC 1881. 9. Thus, in view of the above find no force in the revision and it is accordingly dismissed. However, in the facts and circumstances of the case, the learned trial Court is requested to expedite the trial of the suit. There shall be no order as to costs.Revision petition dismissed. *******