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2014 DIGILAW 3161 (MAD)

Ratheesh v. Harikrishnan Thampi

2014-09-08

V.M.VELUMANI

body2014
Judgment This Civil Revision Petition has been filed to set aside the fair and decretal order dated 03.08.2013, passed by the learned Additional District Munsif, Eraniel, in I.A.No.118 of 2013 in O.S.No.122 of 2009. 2. The petitioner is the plaintiff, whereas the respondent is the defendant in the suit in O.S.No.122 of 2009 and the respondent is the plaintiff, whereas the petitioner is the defendant in the suit in O.S.No.156 of 2010 on the file of Additional District Munsif Court, Eraniel. 3. The petitioner filed the suit in O.S.No.122 of 2009 for permanent injunction restraining the respondent, his agents and servants from trespassing into the plaint schedule properties from disturbing the petitioner's peaceful possession and enjoyment in any manner and from forcibly dispossessing the petitioner. The respondent filed the suit in O.S.No.156 of 2010 for permanent injunction restraining the petitioner from trespassing into the suit properties and from chopping of the nuts from the coconut trees either forcibly or otherwise and from disturbing the possession of the respondent over the suit properties. 4. Both the petitioner as well as the respondent have filed the respective suits against other parties for similar relief in respect of the same property. 5. The petitioner herein filed I.A.No.151 of 2011 in O.S.No.156 of 2010 under Section 10 of C.P.C. for stay of the trial of the suit in O.S.No.156 of 2010 till the disposal of the suit in O.S.No.122 of 2009. By order dated 30.06.2011, the learned Additional District Munsif, Eraniel, granted stay of trial of the suit in O.S.No.156 of 2010 till the disposal of the suit in O.S.No.122 of 2009. The respondent did not challenge the stay order of the said suit by any further proceedings. Therefore, the said order has become final. While so, the respondent herein filed I.A.No.118 of 2013 in O.S.No.122 of 2009, for joint trial of the suits in O.S.No.122 of 2009 and O.S.No.156 of 2010. The petitioner herein has filed counter affidavit stating that the trial of O.S.No.156 of 2010 is stayed under Section 10 of C.P.C. till the disposal of the suit in O.S.No.122 of 2009. The learned Judge, by the order dated 03.08.2013, allowed the said application. Against the said order allowing the application for joint trial of the suits in O.S.No.122 of 2009 and O.S.No.156 of 2010, the present civil revision petition is filed. 6. Heard Mr. The learned Judge, by the order dated 03.08.2013, allowed the said application. Against the said order allowing the application for joint trial of the suits in O.S.No.122 of 2009 and O.S.No.156 of 2010, the present civil revision petition is filed. 6. Heard Mr. K.N. Thampi, learned counsel appearing for the revision petitioner and Mr. V.M. Balamohan Thampi, learned counsel appearing for the respondent. 7. The learned counsel for the revision petitioner argued that the order of the learned Judge is illegal and suffers from material irregularity. The learned Judge failed to consider that the trial of the suit in O.S.No.156 of 2010 was stayed by the order, dated 30.06.2011, made in I.A.No.151 of 2011 in O.S.No.156 of 2010. When the trial of O.S.No.156 of 2010 was stayed, the order of the learned Judge ordering joint trial is illegal and perverse. In support of his submission, the learned counsel for the revision petitioner relied on the Judgment reported in AIR 2005 Bombay 86 [Dattusing Giridharsingh Rajput v. Bhagwant Devasthan, Barshi], wherein in paragraph No.12, it has been held as follows:- "12. .... If there was an order passed under Section 10 of the said Code staying the suit, and if the said order was in force, the learned Judge could not have directed the Plaintiffs to file affidavits and to lead evidence in the absence of the Defendant No.1. ....... If the hearing of the suit was stayed and the stay was not vacated, the Defendant No.1, Dattusingh was not under any obligation to remain present in Regular Civil Suit No.586 of 1976 as dates were fixed from time to time only to find out whether the order of stay was in operation or not." 8. On the other hand, the learned counsel for the respondent argued that Section 10 of C.P.C., will not be a bar for joint trial of the suits between the same party for the same relief. In support of his submission, he relied on the following Judgments: (i) Sellammal and another v. Mookan and another [2000 MLJ (Supp.) 363], wherein in paragraph No.5, it has been held as follows:- "5. ..... In support of his submission, he relied on the following Judgments: (i) Sellammal and another v. Mookan and another [2000 MLJ (Supp.) 363], wherein in paragraph No.5, it has been held as follows:- "5. ..... This is not a case where the respondents have approached the Court for staying further proceedings of the subsequent suit in O.S.No.267 of 1995 under Sec.10, C.P.C. On the other hand, the application was one filed by the petitioners for consolidation of both suits so as to avoid multiplication of proceedings. In such circumstances, I feel consolidation of both the suits will be the proper course and it will be more beneficial to both parties inasmuch as the issue involved in both suits centres around the conveyance of the property situated in S.No.494/6. In such circumstances, in my opinion, Sec.10 will not have any application to the case on hand. Though Sec.10 of C.P.C., contemplates that the Court should not proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, it is to be noted that the said provision will not have direct application in respect of cases where parties seek for consolidation of the trial having regard to similarity of claims made in both suits. To put it differently, in my opinion, Sec.10, C.P.C. does not place an embargo in considering an application for consolidation of trial taking to account the similarity of the claim involved in two different suits in order to avoid multiplicity of proceedings. As it has been held by the learned Judge in the Judgment reported in P.P. Gupta v. East Asiatic Company, A.I.R. 1980 All. 184, Sec.10 was not intended to take away the inherent power of the Court to consolidate in the interests of justice in different suits between the parties in which the matter in issue is substantially the same. ....." (ii) Prem Lala Nahata and another v. Chandi Prasad Sikaria [ 2007 (2) SCC 551 ], wherein in paragraph No.18, it has been held as follows:- "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. 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.) If there is power in the court to consolidate different suits on the basis that it should be desirable to make an order consolidating them or on the basis that some common questions of law or fact arise for decision in them, it cannot certainly be postulated that the trying of a suit defective for misjoinder of parties or causes of action is something that is barred by law. The power to consolidate recognised in the court obviously gives rise to the position that mere misjoinder of parties or causes of action is not something that creates an obstruction even at the threshold for the entertaining of the suit." (iii) Mahalaxmi Cooperative Housing Society Limited and Others v. Ashabhai Atmaram Patel (Dead) through LRs. and Others [2013 (2) SCC (Civil) 636 : 2013 (4) SCC 404 ], wherein in paragraph No.18, it has been held as follows:- "45. We are also not much impressed by the argument of the learned Senior Counsel appearing for the respondent that the trial court has committed an error in not consolidating the various suits including Civil Suits Nos. 292 of 1993 and 681 of 1992 to be tried together as ordered by the District Court in its order dated 29-8-2006 in Civil Misc. Application No. 16 of 2005. Section 24 CPC only provides for transfer of any suit from one court to another. 292 of 1993 and 681 of 1992 to be tried together as ordered by the District Court in its order dated 29-8-2006 in Civil Misc. Application No. 16 of 2005. Section 24 CPC only provides for transfer of any suit from one court to another. The court has not passed an order of consolidating all the suits. There is no specific provision in CPC for consolidation of suits. Such a power has to be exercised only under Section 151 CPC. The purpose of consolidation of suits is to save costs, time and effort and to make the conduct of several actions more convenient by treating them as one action. Consolidation of suits is ordered for meeting the ends of justice as it saves the parties from multiplicity of proceedings, delay and expenses and the parties are relieved of the need of adducing the same or similar documentary and oral evidence twice over in the two suits at two different trials. Reference may be made to the judgment of this Court in Prem Lala Nahata v. Chandi Prasad Sikaria [ 2007 (2) SCC 551 ]." 9. The Judgments relied on by the learned counsel for the respondent reported in 2007 (2) SCC 551 and 2013 (2) SCC (Civil) 636 : 2013 (4) SCC 404 cited supra, deals with the power of the Court to consolidate the suits. Those Judgments are not applicable to the issue involved in this case. As far as the Judgment reported in 2000 MLJ (Supp.) 363 cited supra is concerned, the Court has held that Section 10 of C.P.C., is not a bar for the Courts to exercise their discretion to consolidate the suits, in which the matter in issue is substantially the same. But this Court in the said Judgment, did not hold that even if the stay was granted under Section 10 of C.P.C., a Court can consolidate the suits. In the present case, O.S. No. 156 of 2010 was stayed by the order, dated 30.06.2011, which has become final. The learned Judge failed to consider this fact and did not give any finding. When the trial of the suit in O.S. No. 156 of 2010 is already stayed till the disposal of the suit in O.S.No.122 of 2009, the learned Judge has no power to order joint trial of the suits. The learned Judge failed to consider this fact and did not give any finding. When the trial of the suit in O.S. No. 156 of 2010 is already stayed till the disposal of the suit in O.S.No.122 of 2009, the learned Judge has no power to order joint trial of the suits. This amounts to the learned Judge exercised the jurisdiction not vested with him by law and failed to exercise the jurisdiction so vested and acted in the exercise of his jurisdiction illegally with material irregularity. Therefore, the impugned order of the learned Judge is liable to be set aside. 10. For the reasons stated above, the order of the learned Additional District Munsif, Eraniel, dated 03.08.2013, in I.A. No. 118 of 2013 in O.S. No. 122 of 2009, is set aside and the learned Additional District Munsif, Eraniel, is directed to conduct the trial in O.S. No. 122 of 2009 alone. 11. In the result, this civil revision petition is allowed. No costs. Consequently, connected miscellaneous petitions are closed.