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2005 DIGILAW 654 (PAT)

Shatrughan Prasad Pandey v. Gouri Shankar Prasad

2005-07-27

S.N.HUSSAIN

body2005
Judgment 1. Heard learned counsel for the parties. The petitioner is plaintiff of Mortgage Suit No. 22/2001, which he had filed for a decree for redemption of mortgage vide deed dated 15.2.1991 and also for receiving the mortgage money of Rs. 21,000/- from the plaintiff for payment to the defendant and also for directing the defendant to produce the said deed of mortgage by conditional sale in the court for making it over to the plaintiff and for delivery of possession etc. with respect to the suit land. 2. The plaintiff-petitioner is aggrieved by order dated 7.1.2005 passed in the aforesaid Mortgage Suit No. 22/2001, by which the learned Munsif-II, Madhubani rejected the plaintiffs petition for making the said suit analogous to Mortgage Suit No. 23/2001. 3. The learned counsel for the petitioner has submitted that the instant Mortgage Suit No. 22/2001 was filed by the petitioner against the opposite party Gouri Shankar Prasad, whereas the other Mortgage Suite No. 23/2001 was also filed by the petitioner against the wife of the opposite party Smt. Sita Devi for exactly the same relief, as according to him two mortgage deeds were prepared on the same date with respect to two portions of the land, mortgage money in both of them being Rs. 21,000/- each. Hence he submitted that this was a fit case in which both the suits should have been heard together as analogous cases. 4. On the other hand, learned counsel for the opposite party vehemently opposed the contention of the learned counsel for the petitioner and submitted that defendants of both the suits came in possession of the respective portions of land separately after the mortgages, which fact is admitted by the plaintiff. He further contended that issues in both the suits are completely different as in the instant mortgage suit (22/2001) the defendant-opposite party, who is the husband, has claimed in his written statement that he purchased the entire land of both the deeds, one in his own name and the other in the name of his wife but the amount was paid by him only, hence he is the owner of lands of both the suits, whereas his wife being a Benamidar is not the owner of the other suit land. He further claimed that the deeds in question are not mortgage deeds and they are deeds of absolute sale. He further claimed that the deeds in question are not mortgage deeds and they are deeds of absolute sale. He also stated that in her written statement filed in Mortgage Suit No. 23/2001 the wife, who is the sole defendant in that suit, has not raised any claim with respect to the suit land and has said that everything was done by her husband as money was given, purchase was made and possession was taken by him in his own right and she has got no right, title, interest or possession over the lands of that suit. 5. Learned counsel for the opposite party further claimed that in Mortgage Suit No. 25/2001 issues have already been framed on 5.6.2003 but no list of witnesses have been filed by the plaintiff of that suit for several months, whereas in the instant Mortgage Suit No. 22/2001 even the issues have not been framed, hence the stage of both the suits are completely different and the issues would also be entirely diverse. 6. Learned counsel for the opposite party also stated that the plaintiff-petitioner had also filed a petition in Mortgage Suit No. 23/2001 on 23.8.2004 for making both the aforesaid suits analogous and the defendant of that suit had filed her rejoinder on 6.9.2004, whereafter the said analogous petition was rejected by the court below on 15.9.2004. In the meantime a similar petition had been filed by the plaintiff-petitioner in the instant Mortgage Suit No. 22/2001 on 31.8.2004 in which the defendant-opposite party filed his rejoinder on 23.9.2004, whereafter the said petition was also rejected by the impugned order dated 7.1.2005. Hence the learned counsel for the opposite party submits that the second analogous petition filed in the instant suit by the same person was not maintainable and was barred by the principle of res-judicata. 7. Hence the learned counsel for the opposite party submits that the second analogous petition filed in the instant suit by the same person was not maintainable and was barred by the principle of res-judicata. 7. After hearing the learned counsel for the parties and after perusing the materials on record, it is quite apparent that the opposite party, who is the sole defendant in Mortgage Suit No. 22/2001, has specifically claimed in his written statement that the deeds involved in both the suits were of similar nature and of the same date and executed by the same person, namely, the plaintiff, it is also clear that the opposite party has claimed that he has also given the money and got the deed executed in the name of this wife, who is his Benamidar and is the defendant in the other suit. Furthermore, his wife, who is the sole defendant in the other suit, has also claimed that the lands involved in both the suits as well as in both the deeds were acquired by her husband, namely, the opposite party, out of his own money and she has no interest left therein. In the said circumstances it appears more necessary in the ends of justice that both the suits be heard together for their proper adjudication. 8. Furthermore, it is also an admitted fact that the lands involved in both the suits are parts of plot of the plaintiff-petitioner and the relief claimed in both the suits are also exactly the same and also that the plaintiff in both the suits is the same, whereas the sole defendant of both the suits are husband and wife and defendant of Mortgage Suit No. 23/2001 claimed to be Benamidar of her husband, who is the defendant of Mortgage Suit No. 22 of 2001. Moreover, the subject matter of both the suits are exactly the same and the deeds involved in both the suits are of the same nature and have been executed by the same person, namely, the plaintiff, who is common in both the suits. Hence, the facts of the cases are the same, the claim of the parties is also the same and the issues to be decided in both the suits are also the same. 9. Hence, the facts of the cases are the same, the claim of the parties is also the same and the issues to be decided in both the suits are also the same. 9. Furthermore, both the suits are pending before the learned Munsif-II, Madhubani and the matter in issue being substantially and effectively the same in both the suits, there is no occasion that the said suits should be tried separately, which may invite contradictory judgments. So for the question of res-judicata is concerned, the order of the trial court dated 15.9.2004 passed in Mortgage Suit No. 23/ 2001 is also under challenge in C.R. No. 06/20005, which is pending in this Court. 10. In the aforesaid facts and circumstances, it is quite apparent that the learned court below has decided the matter in issue illegally and with material irregularity and has failed to exercise the jurisdiction vested in it under the specific provisions of law. Thus, the impugned order is set aside and the learned court below is directed to make the aforesaid Mortgage Suit Nos. 22 of 2001 and 23 of 2001 analogous. 11. Accordingly, this civil revision is allowed but in the facts of the case, there will be no order as to costs.