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2014 DIGILAW 2101 (RAJ)

Vinod Kumar v. Radheyshyam Khemka Sons HUF

2014-12-12

ARUN BHANSALI

body2014
JUDGMENT 1. - This writ petition has been filed by the petitioner aggrieved against the order dated 27.10.2014 passed by the trial court, whereby the application filed by the petitioner under Section 10 CPC has been dismissed and the trial court has directed consolidation of the two suits. 2. The respondent Smt. Geeta Devi filed a suit against Vinod Kumar and others for partition, permanent and mandatory injunction on 4.7.2013. Whereafter another suit for partition came to be filed on 17.2.2014 by Radheyshyam Khemka & Sons HUF for partition and permanent and mandatory injunction. The petitioners-defendants in both suits, filed application under Section 10 CPC seeking stay of the subsequent suit filed by Radheyshyam Khemka & Sons HUF. 3. It was inter-alia claimed that earlier suit filed by Smt. Geeta Devi pertaining to the same subject matter was pending; the parties, relief and subject matter of the previous suit was the same and therefore, the proceedings in the subsequent suit be stayed. The application was resisted by the plaintiff-HUF. 4. After hearing the parties, the trial court came to the conclusion that the parties in both the suits were same; the suit pertains to partition, however, in the suit filed by Smt. Geeta Devi only partial partition was sought and therefore, in the previous suit the relief as sought in the subsequent suit could not be granted. However, the court found that it would be proper to consolidate both the suits and therefore, directed that the suits filed by Radheyshyam Khemka & Sons HUF and Smt. Geeta Devi be consolidated and be decided together. 5. It is submitted by learned counsel for the petitioners that the trial court was not justified in dismissing the application, once a conclusion was reached that the parties were similar and the suit was for partition, the trial court was bound to stay the proceedings in the subsequent suit, the order to consolidate the suit also cannot be sustained and therefore, the writ petition deserves to be entertained and the order impugned deserves to be quashed. 6. I have considered the submissions made by learned counsel for the petitioners. 7. For the purpose of exercise of jurisdiction under Section 10 CPC, it is necessary that the matter in issue in the subsequent suit is also directly and substantially in issue in a previously instituted suit, between the same parties, besides other conditions. 6. I have considered the submissions made by learned counsel for the petitioners. 7. For the purpose of exercise of jurisdiction under Section 10 CPC, it is necessary that the matter in issue in the subsequent suit is also directly and substantially in issue in a previously instituted suit, between the same parties, besides other conditions. The trial court after comparing the matter in issue of both the suits, came to the conclusion that though the parties were same and the subject matter of the suit was partitioned, however, the matter in issue in both the suits were different, inasmuch as, in the suit filed by Smt. Geeta Devi partial partition was sought and in the suit filed by Radheyshyam Khemka & Sons HUF, the subject matter was entire property and the relief sought in the subsequent suit could not be granted in the previously instituted suit and therefore, the foundational requirement of matter in issue being also the same in both the suits was missing and therefore, the order passed by the trial court dismissing the application under Section 10 CPC cannot be faulted. 8. The trial court keeping in view the similarity of parties and the subject matter i.e. partition of the joint properties was fully justified in consolidating both the suits so as to avoid passing of any conflicting decrees. 9. In view of the above discussion, there is no substance in the writ petition, the same is, therefore, dismissed.Petition dismissed. *******