Research › Search › Judgment

Rajasthan High Court · body

2009 DIGILAW 1959 (RAJ)

Hargovind Singh @ Channi Sardar v. Rakesh Kumar

2009-09-09

MOHAMMAD RAFIQ

body2009
JUDGMENT : 1. - This writ petition has been filed by the petitioners Har Govind and Balveer Singh against the order dated 30.05.2009 passed by learned additional District Judge, Fast Tack No.2, Alwar by which their application under Section 151 Civil Procedure Code for consolidation of suits one filed by petitioner and another by respondent No.2, was rejected. 2. Learned counsel for the petitioner has argued that learned trial court has even though given'a finding that disputed property with regard to two suits are the same and the parties are substantially same and yet he has declined to consolidate two suits on the premise that their nature is different. It is contended that while petitioners have filed the suit for specific performance on the strength of agreement to sell, entered into by Late Kailash husband of Smt. Shashi with them, Smt. Shashi Sharma has subsequently sold this property to Shri Rakesh, who has now filed a separate suit for permanent injunction. Both the parties claimed that they are in possession of the disputed property. In the suit filed by petitioner, Smt. Shashi is arrayed as defendant whereas Shri Rakesh Kumar has filed a suit against the petitioner. Learned counsel submitted that originally the suits were filed in different courts, but now the suit filed by respondent having been transferred to the same court and thus both the suits are pending in the same court, they are pertinent to same property and the dispute is almost the same. Both the suits are, therefore, required to be consolidated to avoid conflicting judgments, multiplicity of litigation and to save precious time of the Court. Learned counsel relied on the judgments of Supreme Court in M/s. Chitivalasa Jute Mills v. M/s. Jaypee Rewa Cement AIR 2004 SC 1687 and judgment of this Court in Shikhar Chand v. Suresh Chand & Anr., 2008(1) CDR 602 . 3. Learned counsel for the respondents opposed the writ petition and submitted that in the suit filed by respondent No. 1 -Rakesh Kumar, Smt. Shashi Sharma is not a party whereas in the suit filed by both the petitioners Hargovind Singh and Balvinder Singh have been impleaded as party defendant. It cannot be said that parties are the same, besides this the nature of the dispute is the same, which is one of the criteria for consolidation of the suit. It cannot be said that parties are the same, besides this the nature of the dispute is the same, which is one of the criteria for consolidation of the suit. Learned counsel in support of this arguments relied on judgment of this Court in Vishnu Kumar v. Smt. Sohni Devi & Ors. : 1995(2) (Raj.) RLW 635 . Learned court further submitted that judgment of Supreme Court relied on by the petitioner is distinguishable from the present one, therein the dispute was on interpretation of Section 10 of Civil Procedure Code , on the doctrine of sub judice and in that case nature of both the suit was same. 4. Having heard counsel for the parties and perused the material on record, I find that the facts which have been noticed above were also noted by learned trial Court in para No.9 of its order dated 07.1 1.2008 in which it was clearly observed that property in dispute is common in both the civil suits and parties are also substantially common and the issues were also common and substantially the evidence that is led by the parties are also common. Making all these observations, learned District Judge transferred the civil suit filed by petitioner to the Court of Additional District Judge where the suit filed by respondent No. 1 was pending. The order passed by learned District Judge has attained finality. The findings which have now been recorded in rejecting application of the petitioner are evidently perverse from what is observed by learned District Judge. Although the context in which these findings were recorded was of course, the transfer of the suit where the civil suit was pending. When I find that the bone of contention, between parties is same with regard to which both the parties have filed respective suits one for specific performance and other for injunction. While the petitioners claim right over the property on the strength of agreement to sell, which thus entered into with late husband of Shashi Sharma, the respondents also claimed to have purchased this land from Shashi Sharma. It would be, therefore, necessary and in the interest of justice to consolidate these two suits and evidence led before the learned trial Court can be appreciated in both the suits. It would be, therefore, necessary and in the interest of justice to consolidate these two suits and evidence led before the learned trial Court can be appreciated in both the suits. Parties are also common because even if Shahsi Sharma is not impleaded by respondent Rakesh Kumar as either co-plaintiff or proforma-defendant, the fact nevertheless remains whatever right he has acquired is through Shashi, who herself inherited the property in question from her deceased husband. The Supreme Court in M/s. Chitivalasa Jute Mills (supra) in some what similar circumstances noted that two suits ought not to be tried separately. It was observed that once the suit at Rewa reached the Court at Viskhapatnam, the two suits should be consolidated for the purpose of trial and decision. It was directed that trial Court may frame consolidated issues. Although Civil Procedure Code does not specifically speak of consolidation of suits but the same can be done under the inherent powers of the Court flowing from Section 151 Civil Procedure Code . Unless specifically prohibited, the Civil court has inherent power to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. Consolidation of suits is ordered to meet the ends of justice as it saves the parties from multiplicity of proceedings, delay and expenses. Complete or even substantial and sufficient similarity of the issues arising for decision in two suits enables the two suits being consolidated for trial and decision. Parties are relieved of the need of adducing same or similar documentary and oral evidence twice over in the two suits at two different trials. 5. Here in the present case, if not complete or even substantial and sufficient similarity of the issues arising for decision in two suits, if two suits are not consolidated, it would frustrate the order passed by learned District Judge dated 07.1 1.2008 by which the petitioners suit was transferred in the Court where the suit filed by respondents was pending. In somewhat similar circumstances, two suits, one for ownership of property and other for recovery of possession, were ordered to be consolidated by this Court in the case of Shikhar Chand (supra). In somewhat similar circumstances, two suits, one for ownership of property and other for recovery of possession, were ordered to be consolidated by this Court in the case of Shikhar Chand (supra). The facts of that case are not distinguishable from the present one and this Court observed if the suits are tried separately there would be similar documentary and oral evidence twice over which parties can be relieved of if suit are consolidated and they can be decided by a common order. 6. In the result, this writ petition is allowed. The impugned order dated 30.05.2009 passed by learned Additional District Judge, Fast Track No.2, Alwar is set aside. The Civil Suit No.117/08 titled as Balvinder Jeet Kaur v. Smt. Shashi Sharma both pending in the Court of Additional District & Sessions Judge, Alwar are ordered to be consolidated and tried together.Petition allowed. *******