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2006 DIGILAW 1098 (GAU)

Archdiocese of Shillong v. Samuel Dkhar

2006-12-11

TINLIANTHANG VAIPHEI

body2006
JUDGMENT T. Vaiphei, J. 1. This is an application under Section 24 of the Code of Civil Procedure filed by the petitioner for consolidation/amalgamation of Title Suit No. 10(SH) of 2003, Title Suit No. 9(SH) of 2003 and Title Suit No. 8(SH) of 2003 pending before the learned Assistant District Judge, Shillong and Title Suit No. 1(H) of 2005 along with Misc. Case No. 1(H) of 2005 in the file of the learned Munsiff/Shillong and thereafter transferring the consolidated suits to another Court of competent jurisdiction of Gauhati. Subsequently, the petitioner filed an affidavit before this Court in which it abandoned the prayer for transferring the consolidated suits to a Court at Gauhati and now prays for transferring the suits to the learned Additional District Judge, Shillong, in the absence of Assistant Judge District Judge at Shillong, for disposal according to law. 2. I have heard Mr. N. Dutta, the learned senior counsel with Mr. S.R. Sen, the learned senior counsel appearing for the petitioner. I have also heard Mr. M.F. Qureshi, the learned Counsel for the respondents. 3. The facts material for disposal of this application are that the petitioner, which is the owner of the three-storeyed RCC building situate at Jail Road, Shillong, rented out to the respondent No. 2 three different portions of the said building viz (i) one portion being 1500 square feet in the first floor, (ii) another being 4,500 square feet in the ground floor and (iii) the remaining portion being 2,500 square feet in the first floor. According to the petitioner, when the respondent No. 2 defaulted in paying the monthly rents for all the three portions occupied by him, it terminated the tenancy and thereafter filed the three suits before the learned Assistant District Judge, Shillong. Title Suit No. 10(SH) of 2003 relates to the portion measuring 1500 square feet, while Title Suit No. 9 pertains to the portion measuring 4,500 square feet and Title Suit No. 8 is in respect of the portion measuring 2,500 square feet. It is the case of the petitioner that during the pendency of the suits, the respondent No. 2 unauthorisedly started construction/renovation work on the suit premises of Title Suit No. 10(SH) of 2003 and this prompted it to file an application for temporary injunction. It is the case of the petitioner that during the pendency of the suits, the respondent No. 2 unauthorisedly started construction/renovation work on the suit premises of Title Suit No. 10(SH) of 2003 and this prompted it to file an application for temporary injunction. The learned Assistant District Judge, Shillong allowed the application and issued an ad-interim injunction on 11.10.2004 restraining the said respondent from carrying our any work of construction, repair; etc on the said suit premises. The interim injunction was apparently made absolute on 17.12.2004. 4. It is the further case of the petitioner that the respondent No. 1 is also its tenant occupying a portion of the building measuring 192 square feet in the first floor as per the tenancy agreement executed by and between them on 17.10.2003, but he, in collusion with the respondent No. 2, based on false and concocted story, instituted Title Suit No. 1(H) of 2005 before the learned Munsiff/Shillong against it. The respondent No. 1 also filed a Misc. application No. 1(H) of 2005 in connection therewith and obtained an ex-parte ad-interim injunction on 27.01.2005 from the learned Munsiff. According to the petitioner, the respondent No. 1, taking advantage of this interim injunction, trespassed upon the suit premises of Title Suit No. 10(SH) of 2003 and proceeded to make construction work, for which it duly lodged FIR with Sadar Police Station, which thereupon stopped the labourers from further construction and kept the suit premises under lock and key on 31.01.2005 by removing all the goods being put inside unauthorisedly. The petitioner also preferred FAP No. 1(SH) of 2005 before the learned Additional District Judge, Shillong for setting aside the ex-parte injunction whereupon the learned Additional District Judge by the order dated 01.02.2005 directed the parties to maintain the status quo with regard to the suit premises. In the meantime, the police case culminated in a proceeding under Section 145/107 Cr.P.C. before the learned Executive Magistrate, Shillong, who by the order dated 03.02.2005 disposed of the proceeding under Section145 Cr.P.C. and drew up a proceeding under Section 107 Cr.P.C. and directed the police to keep the suit premises under lock and key to prevent breach of the peace. 5. 5. In this case, as noted earlier, the only prayer of the petitioner is for consolidation of all the title suits and thence transferring the suits so consolidated to a competent Civil Court of jurisdiction at Gauhati. Again, as noted earlier, that prayer has been abandoned and the only prayer of the petitioner now is to transfer the consolidated suits to the file of the learned Additional District Judge, Shillong. This prayer is apparently made as the Court of Assistant District Judge, Shillong is not presently functioning since the post of the presiding Judge is lying vacant. Both the prayer for consolidation of the four suits and transfer of the suits so consolidated are vehemently opposed by Mr. M.F. Qureshi, the learned Counsel for the respondent No. 1 on the ground that the subject matter of Title Suit No. 1(H) of 2005 filed by him before the learned Munsiff/Shillong is distinct and different from the subject matters of the other three title suits pending before the learned Assistant District Judge/Shi Hong, that the respondent No. 1 has no relation whatsoever with the respondent No. 2 and that consolidation of such suits would cause prejudice, great inconvenience and hardship to him. 6. The first point for consideration in this case then is whether the four suits pending in different Courts can be amalgamated? True, no specific provision is engrafted in the Code of Civil Procedure for amalgamation/consolidation of suits. Even then, the Court is hardly powerless to order consolidation of suits in exercise of its inherent power under Section 151 of the Code. In a long line of decisions rendered by various High Courts (see Harinarain Choudhury v. Ram Ashish Singh AIR 1957, Dasari Suryanarayana v. Dasari AIR 1960 AP 75 , Bokaro & Ramgur Ltd. v. State of Bihar AIR Pat 340, Bharat Nidhi Ltd. v. Shital Prasad AIR 1981 Delhi 251 and Rosamma Joseph v. P.C. Sebastian AIR 1996 Ker 113 ), the law is no longer res integra. Courts have inherent jurisdiction to consolidate suits if it is expeditious and advantageous to all concerned. The underlying principle is that where it appears that there is sufficient unity or similarity in the matter in issue in the two or more suits, or that the determination of such suits rests mainly on a common question, it is convenient to try them as analogous cases. The underlying principle is that where it appears that there is sufficient unity or similarity in the matter in issue in the two or more suits, or that the determination of such suits rests mainly on a common question, it is convenient to try them as analogous cases. The question to be determined should also be as to whether or not the non-consolidation of the two or more suits is likely to lead, apart from multiplicity of suits, to leaving the door open for conflicting decisions on the same issue which may be common to the two or more suits sought to be consolidated. The convenience of the parties and the expenses in the two suits are subsidiary to the more important consideration, viz, whether it will avoid multiplicity of suits and eliminate chances of conflicting decisions on the same point. 7. In so far as Title Suit No. 10(SH) of 2003, Title Suit No. 9(SH) of 2003 and Title Suit No. 8(SH) of 2003 are concerned, there is no dispute, nor is such dispute raised by the respondent No. 2, that the basis of those suits arose out of the tenancy agreements executed by him with the petitioner and that the suit premises pertain to the same building of the petitioner and further that the terms of the tenancy agreements involved in the three suits appear to be similar in nature. In this view of the matter, the facts of the suits sought to be tried together are virtually intertwined with the cause of action in each suits. Under such circumstances, if the different causes of action are separated and the suits tried independently, the possibility of conflicting decisions cannot be totally ailed out. Therefore, there is no difficulty in ordering the joint trial of the three suits. As for the prayer to transfer and consolidate Title Suit No. 1(H) of 2005 pending before the learned Munsiff/Shillong together with the said three suits, there is also no dispute that the respondent No. 1 is the tenant of the petitioner in respect of the portion measuring 192 square feet of the first floor. It is the allegation of the petitioner that taking advantage of the ex-parte injunction order dated 27.01.2005 obtained by the respondent No. 1 from the learned Munsiff in Misc. It is the allegation of the petitioner that taking advantage of the ex-parte injunction order dated 27.01.2005 obtained by the respondent No. 1 from the learned Munsiff in Misc. Case No. 1(H) of 2005 arising out of Title Suit No. 1(H) of 2005, he, in collusion with the respondent No. 2, trespassed upon the suit premises in Title Suit No. 10 of 2003, and started construction works thereon. This allegation is flatly denied by the respondent No. 1. The fate of Title Suit No. 10(SH) of 2003 is thus most likely to hinge on whether it was the respondent No. 2 or the respondent No. 1, who unauthorisedly occupied the suit premises in question. In other words, whether the respondent No. 1 trespassed upon the suit premises in Title Suit No. 10(SH) of 2003 or whether it was the respondent No. 2 who alone unauthorisedly had occupied the same or whether the respondent No. 1 was only occupying the suit premises measuring 192 square feet of Title Suit No. 1(H) of 2005, are apparently facts being intertwined and overlapped and the possibility of conflicting decisions, if the suits are tried independently, looms large. In the view that I have taken, the ends of justice will be served by ordering amalgamation of all the four suits for disposal by one competent Civil Court of jurisdiction. 8. It is an admitted fact that the Court of Assistant District Judge is not functioning as the post of the Presiding Judge is lying vacant. The consolidation of Title Suit No. 1(H) of 2005 with the other three suits necessarily involves the transfer of the suit from the file of the Munsiff Shillong to the file of a superior Court, namely, the Court of Assistant District Judge, which is like to pose some legal problem. But the problem does not appear to be insurmountable. The consolidation of Title Suit No. 1(H) of 2005 with the other three suits necessarily involves the transfer of the suit from the file of the Munsiff Shillong to the file of a superior Court, namely, the Court of Assistant District Judge, which is like to pose some legal problem. But the problem does not appear to be insurmountable. Section 24 of the Code confers general power to transfer and withdrawal of the suits and proceedings by the High Court and the District Court, which is in the following terms: General power of transfer and withdrawal- (1) On the application of any of the parties and after notice to the parties and after hearing such of them as desired to be herd, or of its own motion without such notice, the High Court or the District Court may at any stage-- (a) transfer any suit, appeal or other proceeding pending before it for trial or disposal to any Court subordinate to it and competent to try or dispose of the same, or (b) withdraw any suit, appeal or other proceeding pending in any Court subordinate to it, and (i) try or dispose of the same; or (ii) transfer the same for trial or disposal to any Court subordinate to it and competent to try or dispose of the same; or (iii) re-transfer the same for trial or disposal to the Court from which it was withdrawn. (2) Where any suit or proceeding has been transferred or withdrawn under Sub-section (1), the Court which is thereafter to try or dispose of such suit or proceeding may, subject to any special directions in the case of an order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn. (3) For the purposes of this section- (a) Courts of Additional and Assistant Judges shall be deemed to be subordinate to the District Court; (b) "proceeding" includes a proceeding for the execution of a decree or order, (4) The Court trying any suit transferred or withdrawn under this section from a Court of Small Causes shall, for the purposes of suit, be deemed to be a Court of Small Causes. (5) A suit or proceeding may be transferred under this section from a Court which has no jurisdiction to try it. (5) A suit or proceeding may be transferred under this section from a Court which has no jurisdiction to try it. The provisions extracted above unmistakably gives an impression that the language of Section 24 is very wide and there are no restrictions in the way of the High Court exercising such power. It can be exercised by the Court either on the application of any party or its own motion and at any stage of the suit. Considering the unrestricted nature of the power conferred by Section 24, the provisions contained in Section 15 of the code cannot in anyway dilute this power of transfer. Section 15 of the code only requires institution of a suit in a Court of the lowest grade competent to try it, but it does not preclude transfer of a suit so instituted to a Court superior grade (see Rosamma Joseph v. P.C. Sebestian AIR 1996 Ker 113 ). Resultantly, I hold that there is no legal impediment in transferring Title Suit No. 1(H) of 2005 from file of the Ld. Munsiff/Shillong to the file of the Ld. Assistant District Judge, Shillong for joint trial with Title Suit Nos. 10, 9 and 8 of 2003. However, further transfer of the four suit so consolidated to the file of the Learned Additional District Judge/Shi Hong is not really necessary since the absence of the Presiding Officer of the Court of Assistant District Judge is only temporary in nature and is most likely to be filled up soon. 9. For the reasons stated in the foregoing, Title Suit No. 10(SH) of 2003, Title Suit No. 9(SH) of 2003 and Title Suit No. 8(SH) of 2003 shall stand consolidated together with Title Suit No. 1(H) of 2005 now in the file of the Ld. Assistant District Judge/Shi Hong, who shall hereafter jointly try and dispose of the same in accordance with law 10. The Misc. application is accordingly disposed of on the above terms. The parties are directed to bear their own costs.