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2008 DIGILAW 1001 (AP)

K. N. Jamuna v. R. Eswar Kumar

2008-11-21

P.S.NARAYANA

body2008
Judgment : The civil revision petition is filed under Article 227 of the Constitution of India challenging an order dated 03.7.2008 made in I.A.No.692 of 2007 in O.S.No.303 of 2006 on the file of the Additional Senior Civil Judge, Chittoor. 2. The said application was filed under Section 151 of the Code of Civil Procedure (hereinafter in short referred to as "the Code" for the purpose of convenience) to club the suits in O.S.No.125 of 1998 and O.S.No.303 of 2006 by treating the evidence let in O.S.No.125 of 1998 as evidence in O.S.No.303 of 2006. The learned Additional Senior Civil Judge, Chittoor, dismissed the said application. Aggrieved by the same, the present civil revision petition had been preferred. 3. Sri S.V. Bhatt, learned counsel representing revision petitioner would maintain that the subject matter in O.S.No.125 of 1998 and O.S.No.303 of 2006 being one and the same and the basis for claim of the subject matter by the respondent also being based on the alleged Will dated 18.9.1998, which was revoked by the executor of the said Will by her last Will dated 10.7.2000, the trial court totally erred in making such an order. The learned counsel also would maintain that the trial court ought to have seen that O.S.No.125 of 1998 was originally filed by late Kollu Nagamma for partition of her husband's share in joint family properties and after the death of said Kollu Nagamma the respondent got impleaded as second plaintiff in O.S.No.125 of 1998 basing on the alleged Will dated 18.9.1998 which was revoked by Kollu Nagamma through her last Will dated 10.7.2000 executed in favour of petitioner. The issue relates to both partition and entitlement to the share of deceased Kollu Nagamma. The counsel also would maintain that if the trial court had considered this aspect in its entirety, the trial court would have allowed I.A.No.692 of 2007. The counsel also further would maintain that the trial court totally erred in observing that already trial is being completed to the maximum extent in O.S.No.125 of 1998 and the evidence is yet to be commenced in O.S.No.303 of 2006 and the parties are also different, as such both the suits cannot be clubbed together and they have to be tried independently and this view of the trial court cannot be said to be in consonance with what had been observed in Tr.O.P.No.44 of 2007. Thus, the learned counsel would maintain that the order under challenge in the present civil revision petition cannot be sustained. The counsel also relied on certain decisions to substantiate his submissions. 4. Per contra, Sri Sharad Sanghi, learned counsel representing respondent would maintain that except the fact that R. Eswar Kumar is common party, the subject matter in these suits being different and the issues to be decided also being different and also in the light of the fact that one suit is at the stage of part heard and also at the fag-end, at present clubbing the suits may not be just and proper, since there may be delay in disposal of the other suit in which the evidence already had been recorded. The learned counsel also placed before this court the pleadings of the parties both in O.S.No.125 of 1998 and also O.S.No.303 of 2006 aforesaid and also pointed out to the respective schedules and would maintain that in the light of the facts and circumstances, especially, inasmuch as the learned Judge observed that the judgments can be pronounced at a time both need not be clubbed, the impugned order cannot be found fault. The learned counsel also would maintain that it is no doubt true that Tr.O.P.No.44 of 2007 on the file of the District judge, Chittoor, had been allowed and O.S.No.303 of 2006 pending on the file of the Principal Senior Civil Judge, Chittoor, was ordered to be transferred to the file of the Additional Senior Civil Judge, Chittoor, to be tried along with O.s.No.125 of 1998 in accordance with law. Ordering joint trial or clubbing the suits or recording common evidence, this is something different from withdrawing the suit from the file of one court to be tried along with other suit and, hence, the impugned order does not suffer from any illegality. The learned counsel also placed reliance on certain decisions to substantiate his submissions. 5. Heard the counsel. 6. On 12.9.2008 while admitting the civil revision petition a report had been called for from the learned Senior Civil Judge, Chittoor, through the learned District Judge, Chittoor and in C.R.P.M.P.No.5022 of 2008 interim stay had been granted. The learned counsel also placed reliance on certain decisions to substantiate his submissions. 5. Heard the counsel. 6. On 12.9.2008 while admitting the civil revision petition a report had been called for from the learned Senior Civil Judge, Chittoor, through the learned District Judge, Chittoor and in C.R.P.M.P.No.5022 of 2008 interim stay had been granted. The learned Judge submitted report explaining the facts and circumstances and further explained that on the basis of facts of the case the learned judge was of the opinion that both the suits cannot be clubbed together and that however the judgments in both the suits be pronounced at a time. The learned Judge also expressed that the learned Judge never had intention of disobeying the orders of the Hon'ble District Judge, Chittoor. 7. It is not in serious controversy that by virtue of an order made in Tr.O.P.No.44 of 2007 on the file of the District Judge, Chittoor, the suit O.S.No.303 of 2006 pending on the file of the Principal Senior Civil Judge, Chittoor, was ordered to be transferred to the file of the Additional Senior Civil Judge, Chittoor, to be tried along with O.S.No.125 of 1998 in accordance with law. Hence, the petitioner filed I.A.No.692 of 2007 in O.S.No.303 of 2006 on the file of the Additional Senior Civil Judge, Chittoor, praying for joint trial and recording of common evidence in both the suits. The respondent had taken specific stand that the learned District Judge never directed the clubbing of the suits. Further, the petitioner is not a party in O.S.No.125 of 1998 and she cannot ask the evidence let in O.S.No.125 of 1998 to be treated as evidence in O.S.No.303 of 2006. Further, the recording of evidence in O.S.No.125 of 1998 already had commenced. The learned Judge at para 3 observed as hereunder. "It is observed that to club the suits together, the parties and the subject matter of the suit should be one and the same to avoid the conflicting judgments with regard to the same issue in dispute in both the cases. As it is observed in this case that already the trial is being completed to the maximum extent in O.S.no.125 of 1998 and the evidence is yet to be commenced in O.S.no.303 of 2006 and the parties are also different, as such both the suits cannot be clubbed together and they have to be tried independently. As it is observed in this case that already the trial is being completed to the maximum extent in O.S.no.125 of 1998 and the evidence is yet to be commenced in O.S.no.303 of 2006 and the parties are also different, as such both the suits cannot be clubbed together and they have to be tried independently. For only consideration would be the judgments can be pronounced at a time, but a common trial cannot be held in both the suits and it is the question of law once the trial commenced, the suits cannot be clubbed. Hence, there are no merits in the petition. Hence, the petition is dismissed." 8. The learned counsel for the revision petitioner placed strong reliance on the decision in V.N. Jayaraman v. P. George Vincent and another (2002 Suppl. (1) ALD 504) wherein this Court while dealing with Section 24 of the Code held that an application filed by the plaintiff in one suit in one Court for the transfer of the suit filed by the respondent in another court pertaining to the same subject-matter and also for joint trial of the two suits, the other suit is part heard and the suit filed by the petitioner had not yet commenced trial, in the circumstances, the other suit is ordered to be transferred to the Court in which the petitioner filed the suit. But so far as joint trial is concerned, it is for the parties to file a separate petition for joint trial. 9. Further reliance was placed on the decision of this Court in Yeleti Pedaveerraju and another v. Vanka Jayalakshmi and others ( 2006 (1) ALD 642 ) wherein it was observed that for avoidance of conflicting judgments, two suits, one for injunction and other for partition, declaration and injunction and parties are common, suit property covered in both suits and title to said property being traced to Will, invariably court has to decide validity of Will while granting relief. Possibility of rendering conflicting judgments if both suits allowed to be tried independently to avoid conflicting judgments and for convenience of parties and also to avoid multiplicity of proceedings, it is desirable to club both suits and dispose of them together. It is for transferee Court to decide from which stage it has to proceed. 10. Possibility of rendering conflicting judgments if both suits allowed to be tried independently to avoid conflicting judgments and for convenience of parties and also to avoid multiplicity of proceedings, it is desirable to club both suits and dispose of them together. It is for transferee Court to decide from which stage it has to proceed. 10. The counsel for respondent placed strong reliance on the decision in Nalamati Latchanna v. Masina Sriramulu ( 1993 (1) APLJ 92 ) wherein the learned Judge of this Court observed as hereunder. "The order of the lower Court directing clubbing of the suits together, recording common evidence and passing common judgment in both the suits is not sustainable. No doubt in cases where parties are common and matter is absolutely similar, to avoid multiplicity of suits and to eliminate chances of conflicting decisions on the same point, consolidation of two or more suits can be ordered. Where, however, suits brought by the same plaintiff are prima facie based on different and independent transactions, the consolidation cannot be ordered, as there cannot be conflicting decisions. In the present case, the first suit is for declaration of fishing rights and the second suit is for recovery of damages and the question of rendering conflicting decisions would not arise at all, as the issues are different and some of the defendants figured are also different in the two suits." 11. Ordering clubbing of the suits or recording of common evidence always to be done depending on the facts and circumstances of a given case. It is no doubt true that when transfer of one suit to be tried along with yet another suit had been ordered by virtue of an order made in transfer O.P., the Court is expected to be careful and cautious in examining the relevant pleadings and issues, the subject matter and the parties as well and decide whether it would be just and proper to proceed with separate trials. Whether simultaneously the judgments are to be pronounced or not, or whether suits are clubbed for recording common evidence or not, even if independent evidence is recorded in each of the suit, if both the suits are simultaneously disposed of, the question of delivering of conflicting judgments may not arise. 12. Whether simultaneously the judgments are to be pronounced or not, or whether suits are clubbed for recording common evidence or not, even if independent evidence is recorded in each of the suit, if both the suits are simultaneously disposed of, the question of delivering of conflicting judgments may not arise. 12. Even otherwise in the light of the reasons recorded by the learned Judge, this Court is well satisfied that the impugned order does not suffer from any legal infirmity warranting interference under Article 227 of the Constitution of India. However, it is made clear that in the light of the specific observation made by the learned Judge to the effect that the judgments in both the suits be pronounced at a time no prejudice is caused to the revision petitioner. 13. Accordingly, the civil revision petition shall stand dismissed subject to the above observation.