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2013 DIGILAW 1867 (RAJ)

Nand Lal v. Roop Chand Sharma

2013-10-24

ATUL KUMAR JAIN

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JUDGMENT : Atul Kumar Jain, J. In this writ petition, the petitioner Nand Lal had prayed that order dated 07.02.2011 passed by the Addl. District Judge (Fast Track) No. 3, Ajmer camp Kishangarh be quashed and set aside and the application filed by petitioner-plaintiff Nand Lal for consolidation of two suits be accepted. 2. I have heard both the parties and I have perused the order dated 07.02.2011 passed by the Addl. District Judge (Fast Track) No. 3, Ajmer camp Kishangarh whereby that court had dismissed the application under Section 10 CPC read with Section 151 CPC filed by Nand Lal (petitioner). Civil Suit No. 147/2007 titled as Roop Chand v. Nand Lal was pending in the court of Civil Judge (JD), Kishangarh. That suit was instituted earlier than the Civil suit No. 27/2009 which was filed in the court of the Addl. District Judge (Fast Track) No. 3, Ajmer camp Kishangarh titled as Nand Lal v. Roop Chand. Looking to the provisions of Section 10 CPC, proceedings of C.S. No. 27/2009 were stayed by an order dated 08.04.2010 by the Addl. District Judge (Fast Track) No. 3, Ajmer camp Kishangarh. The order dated 08.04.2010 was challenged by Nand Lal before this Court in S.B. Civil Writ Petition No. 12006/2010 titled as Nand Lal v. Roop Chand and another and that writ petition was decided on 14.02.2011 by this Court whereby the order dated 08.04.2010 was upheld by this Court. It was observed in the order dated 14.02.2011 by this Court that the plaintiff-petitioner Nand Lal is claiming rights over the disputed property on the basis of the Will dated 17.09.2007 and the said Will is directly and substantially in question in both the civil suits, so the proceedings of subsequent C.S. No. 27/2009 were rightly stayed during the pendency of the C.S. No. 147/2007 which is pending before the Civil Judge (JD), Kishangarh. 3. Now, petitioner Nand Lal wants that C.S. No. 147/2007 which is pending before the Civil Judge (JD), Kishangarh should be transferred to the Addl. District Judge (Fast Track) No. 3, Ajmer camp Kishangarh because in both the suits, same Will dated 17.09.2007 is directly and substantially in question. The prayer of Nand Lal to this extent has not been opposed by the learned Advocate of respondent No. 1 Roop Chand. District Judge (Fast Track) No. 3, Ajmer camp Kishangarh because in both the suits, same Will dated 17.09.2007 is directly and substantially in question. The prayer of Nand Lal to this extent has not been opposed by the learned Advocate of respondent No. 1 Roop Chand. So it is hereby ordered that C.S. No. 147/2007 pending in the court of Civil Judge (JD), Kishangarh stands transferred to the court of the Addl. District Judge (Fast Track) No. 3, Ajmer camp Kishangarh. 4. The Second prayer of the petitioner Nand Lal is to the effect that after consolidation of both the suits, the court of the Addl. District Judge (Fast Track) No. 3, Ajmer camp Kishangarh should be allowed to proceed with the case. Respondent No. 1 Roop Chand has strongly opposed this part of the prayer of petitioner Nand Lai. 5. The petitioner has sought help from the following rulings :- (1) Zakinaben and Ors. v. Babubhai Alimohmad Kapadia & Ors., AIR 1999 Gujarat 118. 6. In this case, it was held that consolidation can be ordered under the inherent powers of the court and the consent of the parties is not necessary. (2) Dr. Guru Prasad Mohanty & Ors. v. Bijay Kumar Das, AIR 1984 Orrisa 209. 7. In this case, it was held that when two suits between the same parties, involving common question arising between them, are pending, then consolidation of two suits should be allowed under the inherent powers of the court. (3) M/s. Chitivalasa Jute Mills v. M/s. Jaypee Rewa Cement, AIR 2004 SC 1687 . 8. In this case also, it was held that even if the prayer under Section 10 CPC for stay of the suit has been dismissed, the court is not denuded of exercise of power to transfer the suit if ends of justice call for exercise of such power and under inherent powers given under Section 151 CPC, both the suits may be consolidated by the court. 9. On the other hand, respondent Roop Chand has sought help from the following rulings :- (1) State of UP & Ors. v. Roshan Singh (D) by LRs & Ors., AIR 2008 SC 1190 . 10. In this case, it was held that inherent powers should not be exercised for benefit of litigant who has remedy under relevant statute. (2) Jado Rai v. Onkar Prasad, AIR 1975 Allahabad 413. 11. v. Roshan Singh (D) by LRs & Ors., AIR 2008 SC 1190 . 10. In this case, it was held that inherent powers should not be exercised for benefit of litigant who has remedy under relevant statute. (2) Jado Rai v. Onkar Prasad, AIR 1975 Allahabad 413. 11. In this case, it was held that in certain circumstances Section 10 CPC is not applicable but even then under the provisions of Section 151 CPC, the court can stay the trial of a suit in the interest of justice. (3) Arjun Singh v. Mohindra Kumar & Ors., AIR 1964 SC 1963. 12. In this case, it was held that inherent powers of the court cannot override the express provisions of law. 13. After going through all these rulings, it is clear that for complete and final adjudication, if the court considers that consolidation of the suits will help the cause of justice and it will help the expeditious and efficacious disposal of the matter in controversy, then both the suits may be consolidated under the provisions of Section 151 CPC irrespective of the fact that the trial of one of the suits has been stayed under the provisions of Section 10 CPC by this Court. I am convinced that in these suits, the Will dated 17.09.2007 is directly and substantially in question, so the Addl. District Judge (Fast Track) No. 3, Ajmer camp Kishangarh is hereby directed to consolidate both the suits and then re-frame and modify the issues in a consolidated manner and then evidence of respondent Roop Chand should be recorded first in the consolidated suit and then evidence of Nand Lal (petitioner) should be recorded and then after right of rebuttal should be given to respondent Roop Chand. Title of the suit will be as `Roop Chand v. Nand Lal. New civil suit number may be given to the consolidated suit. 14. The writ petition as well as the slay petition stand disposed of accordingly. A copy of this order be sent to both the courts below immediately.