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2002 DIGILAW 340 (PNJ)

Nand Kishore v. Ram Dev

2002-03-22

AMAR BIR SINGH GILL

body2002
JUDGMENT Amar Bir Singh Gill, J. - This revision petition is against order dated 28.02.1995 passed by Sub Judge Ist Class, Mansa, declining the consolidation of two suits pending before him. 2. The controversy, in brief, is that the petitioner had filed a civil suit for mandatory injunction for directing respondents No. 1 and 2 to demolish and remove encroachment made by them on 13.4.1993 on a public place thereby obstructing a thoroughfare which is part of big chowk and that the respondents have nothing to do with the suit land. The said encroachment was made illegally without any title inspite of the fact that the Municipal Committee had rejected the sanctioning of the site plan. Respondents No. 1 and 2 likewise filed a Civil suit No. 108 of 1993 titled Ram Dev v. Municipal Committee, Mansa, for a permanent injunction restraining the Municipal Committee and its President, respondents No. 3 and 4, from demolishing the alleged encroachment on the disputed land claiming themselves to be the owners of the said site. The present petitioner filed an application under Order 1 Rule 10 and Section 151 of the Code of Civil Procedure in Civil Suit No. 108 of 1993 for impleading him as a defendant and consolidation of suits to avoid multiplicity of suits but the same was declined vide order dated 22.5.1993 holding that these two suits cannot be consolidated. The petitioner claimed that since the subject-matter in both the suits is directly and substantially the same as well as the evidence to be produced by either of the parties for and against would be the same, both the suits need to be consolidated so that complete justice be done to the parties. 3. I have heard learned counsel for the parties. 4. It is apparent from the brief narration of facts above that these two civil suits pertained to one and the same subject-matter i.e. a structure which the present petitioner claimed to be encroachment on the public land, whereas the respondents claimed the same belonging to them as owner. 3. I have heard learned counsel for the parties. 4. It is apparent from the brief narration of facts above that these two civil suits pertained to one and the same subject-matter i.e. a structure which the present petitioner claimed to be encroachment on the public land, whereas the respondents claimed the same belonging to them as owner. In the suit filed by the present petitioner, he is seeking a mandatory injunction for removal of alleged encroachment from the site in question by the respondents, whereas in Civil Suit No. 108 of 1993, respondents No. 1 and 2 are seeking permanent injunction against the Municipal Committee itself for restraining the latter from removing the structure from the same site. The Court below did not permit consolidation of the suits simply because parties to both the suits were not same as Nand Kishore, the present petitioner, was not a party in the other suit i.e. Civil Suit No. 108 op 1993, and only respondents No. 1 to 4 were party in the that suit. It has been observed by the Court below as under :- ".........The matter in issue is also not the same as in other suit, the matter in controversy is that whether the Municipal Committee is to be restrained from demolishing the encroachment allegedly made by the respondents No. 1 and 2, whereas in the present suit the question in controversy is whether a mandate can be issued directing the respondent No. 1 and 2 to remove the alleged encroachment made by them........" The above observations of the Court below are itself sufficient to hold that the subject-matter of these two suits is identical and it both the suits are allowed to be tried separately and they are decreed, it would result in rendering contradictory judgments on the same subject-matter as in the suit filed by the petitioner the decree would amount to holding the disputed structure as encroachment and a direction for its removal, whereas in the suit filed by the respondents, the decree would restrain the Municipal Committee from removing the same very structure. The sole question i.e. the controversy between the parties is regarding the status of the disputed structure, if the site belonged to respondents or if it is encroachment on the public land. The sole question i.e. the controversy between the parties is regarding the status of the disputed structure, if the site belonged to respondents or if it is encroachment on the public land. As such, both the suits were required to have been consolidated under section 151 of the Code of Civil Procedure which, inter alia, provides as under :- "151. Saving of inherent powers of Court :- Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of the justice or to prevent abuse of the process of the Court." 5. The consolidation of these suits, in such circumstances, is necessary for doing complete justice to the parties in both the suits. The settled principle of law is not lacking as well. In the case of Ved Parkash v. Amar Singh and another, 1996(1) Civil Court Cases 339 , two suit were filed on the basis of agreement to sell in favour of the plaintiffs for the same very land and in order to avoid two contradictory decrees, the two suits were ordered to be consolidated and to be disposed of together. In an indentical case reported as Navin Pal Kaur v. Raja Ram and another, 1997(1) Civil Court Cases 19, two suits by two different persons for specific performance of agreement to sell of the same property were directed to be consolidated since the agreement in question was allegedly executed by one and the same person. The plaintiff in the latter suit was directed to be impleaded as defendant in the former suit. In another case reported as Shantilal Khushaldas & Bros. Pvt. Ltd. & Anr. v. Raghuvir R. Painguinkar and others, 1995(1) Civil Court Cases 195 (Bombay), it was observed that when there is unity between the suits, it is desirable to avoid not only the chances of conflicting decisions, but even the element of waste of time by the different Courts. Moreover, consolidation of suits is a discretion vested in the Court under Section 151 of the Code of Civil Procedure (for short "the Code") irrespective of the consent of the parties if it meets the requirements of Section 151 of the Code and so far as it is required "in the ends of justice" or "to prevent the abuse of the process of the Court". It is no doubt that inherent jurisdiction under Section 151 of the Code can exercised only in those cases where there is no specific provision. Admittedly, there is no such provision for consolidation of suits in the Code and in appropriate cases resort has to be made of the provisions of Section 151 of the Code. Moreover, section 151 of the Code no where requires any consent of the parties to pass such an order. The sole reason given by the trial Court that since respondents No. 3 and 4 are not impleaded in the suit filed by the petitioner or that they are not party to the suit, there is no identity of the parties, is without any merit. As indicated above, the petitioner-plaintiff had mentioned in the suit that the respondents had made encroachment on the public land in spite of the fact that the application for sanctioning of the site plan submitted by him was rejected by the Municipal Committee. At best, respondents No. 3 and 4 could also be impleaded as defendants even under the directions of the Court. 6. In view of what has been stated above, order dated 28.2.1995 passed by Sub Judge Ist Class, Mansa, is set aside and the application for consolidation of both the aforesaid suits is allowed. Civil Suit No. 108 of 1993 titled Ram Dev v. Municipal Committee, shall be consolidated with civil Suit No. 1602 of 1994 filed by petitioner Nand Kishore against Ram Dev and others and the suit filed by plaintiff Ram Dev shall be the leading case for disposal as common issue arise out of the pleadings of the parties in both the suits. In view of the delay in the disposal of this petition, it is directed that if the suits are pending between the parties, the same shall be disposed of on priority basis. Order accordingly.