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2008 DIGILAW 1581 (BOM)

Sanjeev Indravadan Dani v. Rupal Sanjeev Dani

2008-11-10

ANOOP V.MOHTA

body2008
Judgment 1. By consent, heard finally. 2. The Petitioner-husband has challenged the order dated 21st June, 2008 passed on Exhibit Nos. 5 and 7 whereby the Application for stay of Petition No.A-218/2007 is rejected and Application at Exhibit 7 has been allowed directing the parties to tag both the petitions together, by leading common evidence in Petition No.A-1773/2004, filed earlier. 3. The Petitioner-husband had filed an Application for stay of the petition. Respondent-wife had filed an Application at Exhibit 7 for clubbing of both the Petitions. The Petitioner-husband has filed Petition No.A-1773/2004 for restitution of conjugal rights prior to the Petition No.A-218/2007 for dissolution of marriage. Both the parties are same, the issues involved are directly and substantially interconnected and interlinked and are same in both the Petitions. The Court is same. Both the parties are contesting the matter in the Family Court at Bandra, Mumbai though, Petitioner-husband is now residing at New Delhi. There is no challenge to the impugned order by Respondent-wife. The present Petition is filed by the Petitioner-husband and challenged the common order on both the Applications. 4. The relevant Section 21-A of the Hindu Marriage Act is reproduced below:- "21A. Power to transfer petitions in certain cases. cases.-(1) Where (3) a) a petition under this Act has been presented to a district court having jurisdiction by a party to a marriage praying for a decree for judicial separation under section 10 or for a decree of divorce under section 13; and b) another petition under this Act has been presented thereafter by the other party to the marriage praying for a decree for judicial separation under section 10 or for a decree of divorce under section 13 on any ground, whether in the same district court or in a different district court, in the same State or in a different State, . the petitions shall be dealt with as specified in sub-section (2). 2) In a case where sub-section (1) applies,- a) if the petitions are presented to the same district court, both the petitions shall be tried and heard together by that district court; b) if the petitions are presented to different district courts, the petition presented later shall be transferred to the district court in which the earlier petition was presented and both the petitions shall be heard and disposed of together by the district court in which the earlier petition was presented. 3) In a case where clause (b) of sub-section (2) applies, the court or the Government, as the case may be, competent under the Code of Civil Procedure, 1908 (5 of 1908), to transfer any suit or proceeding from the district court in which the later petition has been presented to the district court in which the earlier petition is pending, shall exercise its powers to transfer such later petition as if it had been empowered so to do under the said Code." 5. Considering the provisions of Civil Procedure Code (for short, "C.P.C.") and the scheme of Section 21-A of the Hindu Marriage Act as referred above, I am also of the view that there is a power to transfer the Petition and direct their joint or consolidated trial specially in view of the observations by the Apex Court in Guda Vijayalakshmi Vs. Guda Ramchandra Sekhara 1143 Sastry, 1981 S.C. 1143- . "In such a situation resort will have to be had to the powers under Sections 23 to 25 of the Civil Procedure Code for directing transfer of the petitions for a consolidated hearing. Reading Section 21A in the manner done by the Nagpur Bench which leads to anomalous results has to be avoided." . The Apex Court declined to accept the views in Priyavari Mehta Vs. Priyanath Mehta, AIR 1980 Bombay 337, Bench) (Nagpur Bench), the reliance on which strongly placed to oppose the impugned order. 6. In Dilip Vs. Vandana, 1992(2) HLR 357, the facts are totally distinct and distinguishable. The above Apex Court decision Guda Vijayalakshmi (supra) is not at all noted. On the contrary, in Kalpana Bharat Patil Vs. Bharat Onkar Patil, II (2007) DMC 734, this Court on facts and circumstances, where parties were same and would be leading a common evidence in both the proceedings and as both the proceedings were pending before the same Court, therefore, in the interest of justice directed to try and decide together. 7. The following observations of Supreme Court in Prem Lala Nahata & Anr. Vs. Chandi Prasad Sikaria (2007) 2 S.C.C. 551 , which according to me concluded the issue for all the purposes. "18. It cannot be disputed that the court has power to consolidate suits in appropriate cases. 7. The following observations of Supreme Court in Prem Lala Nahata & Anr. Vs. Chandi Prasad Sikaria (2007) 2 S.C.C. 551 , which according to me concluded the issue for all the purposes. "18. It cannot be disputed that the court has power to consolidate suits in appropriate cases. Consolidation is a process by which two or more causes or matters are by order of the court combined or united and treated as one cause or matter. The main purpose of consolidation is therefore to save costs, time and effort and to make the conduct of several actions more convenient by treating them as one action. The jurisdiction to consolidate arises where there are two or more matters or causes pending in the court and it appears to the court that some common question of law or fact arises in both or all the suits or that the rights to relief claimed in the suits are in respect of or arise out of the same transaction or series of transactions; or that for some other reason it is desirable to make an order consolidating the suits. (See Halsbury’s Laws of England, Vol. 37, Para 69.)". . Though based on the provisions of C.P.C., the Supreme Court has observed in State Bank of India Vs. Ranjan 97 Chemicals Ltd. & Anr. (2007) 1 S.C.C., 97- "11. A joint trial is ordered when a court finds that the ordering of such a trial, would avoid separate overlapping evidence being taken in the two causes put in suit and it will be more convenient to try them together in the interests of the parties and in the interests of an effective trial of the causes. This power inheres in the court as an inherent power. It is not possible to accept the argument that every time the court transfers a suit to another court or orders a joint trial, it has to have the consent of the parties. A court has the power in an appropriate case to transfer a suit for being tried with another if the circumstances warranted and justified it." 8. In view of above, I see there is no reason to interfere with the order as rightly observed "to avoid further delay and multiplicity of trial, it will be just and proper to decide both the petitions together even by recording common evidence in both the petitions." 9. In view of above, I see there is no reason to interfere with the order as rightly observed "to avoid further delay and multiplicity of trial, it will be just and proper to decide both the petitions together even by recording common evidence in both the petitions." 9. In the result, the Petition is dismissed.