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2011 DIGILAW 411 (ORI)

Jahangir Khan v. Alamgiri Khan

2011-08-08

B.K.NAYAK

body2011
ORDER 8.8.2011 — Heard learned counsel for both parties. 2.Order dated 11.4.2011 passed by the learned Civil Judge (Sr.Division), Jajpur rejecting the petition of the present petitioner for analogous hearing of C.S. Nos.50 of 2009 and 139 of 2009 pending before the said Court is under challenge in this writ petition. 3.The present O.P. No.1 has filed C.S. No.50/09 in the Court of the Civil Judge (Sr. Division), Jajpur for partition of plot No.14 under Khata No.115 on the assertion that the said property is the joint family property of the plaintiff and the defendants. In the said suit, the present petitioner, who is, admittedly, the brother of the plaintiff has been arrayed as Defendant No.2. The petitioner in his written statement asserted that another joint family property under plot No.17 has been left out by the plaintiff which should have been included in the hotchpotch of the suit for the purpose of partition. The plaintiff having not taken any step to bring plot No.17 to the hotchpotch of C.S. No.50/09 the present petitioner filed a separate suit before the same Court bearing No.139/09 against the present O.P. No.1 and some others for partition of Plot No.17. Subsequently, he filed a petition for analogous hearing of both the suits. The said petition has been rejected by the learned trial Court on the ground that the properties and the parties in both the suits are different. 3.The learned counsel for the petitioner relying on the decision reported in 1999 (II) OLR-637 (Smt. Puspalata Das alias Moharana v. Muralidhar Bhoi) has submitted that where the main question raised in both the suits are similar, though all the parties are not common to both the suits, but the contesting parties are common and that since both the parties admit that plot Nos.14 and 17 are the joint properties which are required to be partitioned, the Court below should have allowed the petition for analogous hearing of both the suits. The learned counsel for O.P. No.1, on the other hand, contends that in his plaint in C.S. No.139/09 the present petitioner has asserted that there are two more plots, i.e., plot Nos.15 and 16 which are also joint family properties of the parties and that he having not brought those two plots to the hotchpotch of the suits, the petition filed by him for analogous hearing has been rightly rejected. He also states that C.S. No.50/09 is at the hearing stage whereas the other suit has not reached that stage. 4.In the case of Smt. Puspalata Das (supra) cited by the learned counsel for the petitioner this Court has held as “10. Law is well settled that when a specific provision has been made to cover a particular aspect, their is no scope for invoking the inherent power of a Court under Sec.151, CPC. However, the said principle has no application to the facts of the present case. In the present case, it is apparent that the main question raised in both the suits are similar. Though all the parties are not common, the contesting parties are same in both the suits. One of the main issues in both the suits would be relating to validity of the sale deed allegedly executed in favour of the present opposite party by Bijayalaxmi Das, who is also a party in the other suit. Since the main parties are common and common questions of fact and law are likely to arise, it cannot be said that the trial Court has committed any illegality in directing that both the suits should be heard analogously instead of directing stay of the subsequent suit. The facts and circumstances arising in the Supreme Court decision reported in AIR 1962 Supreme Court 527 are completely different. The other two decisions of the Orissa High Court cited by the counsel for the petitioners relate to general principle of law and do not lay down anything which can be considered to be throwing any light on the question now involved. It is to be noticed that both the suits were pending in the very same Court and not in different Courts. The order passed by the trial Court directing analogous hearing of both the suits is in the interest of justice and it cannot be said that the order is without jurisdiction.” 5.Admittedly, some of the parties in both the suits are not common. The reason for impleading Deceased-defendant No.5 in C.S. No.50/09, who was subsequently substituted by his legal heirs, has not been described in the plaint of that suit and the status of some of the defendants in C.S. No.50/09 as being members of the joint family has also been disputed by the present petitioner. The reason for impleading Deceased-defendant No.5 in C.S. No.50/09, who was subsequently substituted by his legal heirs, has not been described in the plaint of that suit and the status of some of the defendants in C.S. No.50/09 as being members of the joint family has also been disputed by the present petitioner. Be that as it may the petitioner and O.P. No.1, who are plaintiffs in their respective suits are undisputedly brothers and that there is no dispute that plot Nos.14 and 17 which are the subject matter of the suits are joint properties of the family. It is, therefore, meet and proper that both the suits which are pending before same Court should be heard analogously. The question about non-inclusion of some joint family properties in the suits and status of some parties as to whether they belong to the joint family of the petitioner and O.P. No.1 can also be decided during analogous hearing. The observations of this Court in the case of Smt. Puspalata Das (supra) apply with full force to the facts and circumstances of the present case. Therefore, I set aide the order passed by the trial Court and direct that C.S. Nos. 50 of 2009 and 139 of 2009 shall be heard analogously by the trial Court as expeditiously as possible. The writ petition is accordingly disposed of. Petition disposed of.