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2015 DIGILAW 586 (RAJ)

Hari Singh v. Additional District Judge (Fast Track) No. 1, Jhunjhunu

2015-03-04

MOHAMMAD RAFIQ

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Hon'ble RAFIQ, J.—This writ petition has been filed by plaintiff/petitioner Hari Singh, who, during its pendency, died and has been substituted by his legal heirs, namely, Anant Pal Singh and Others. 2. In this writ petition, challenge is made to order dated 20.08.2005 passed by the Additional District Judge (Fast Track) No.1, Jhunjhunu. The trial court, by aforesaid order, has allowed the application filed by defendant/ respondent under Section 10 read with Section 151 of the Code of Civil Procedure, and directed that trial of the suit filed by plaintiff/petitioner, out of which present matter arises, shall remain stayed. The plaintiff/petitioner filed the suit against defendant/respondents for eviction, recovery of possession and perpetual injunction. The defendant/respondents, however, contested the suit by filing written statement, wherein primarily it was pleaded that the plaintiff/petitioner was claiming the right over the disputed property on the basis that the suit property came to his share in partition. For this purpose, he produced partition deed, which was neither stamped nor registered, therefore, could not be read in evidence. Defendant/Respondent no.3 Smt. Ratan Kanwar filed a suit in the court of Civil Judge (Junior Division), Udaipurwati (Jhunjhunu) being Civil Suit No.7/2004 for perpetual injunction in which cause of action accrued to her on 18.01.2004, when original plaintiff/ petitioner Hari Singh along-with 10-15 other persons tried to forcibly dispossess her from the suit premises. 3. The defendant/respondent filed an application under Section 10 read with Section 151 of the CPC in the suit of the present plaintiff/petitioner inter alia on the premise that the proceedings in the present suit be deferred till earlier suit filed by defendant/respondent is not decided. Learned Additional District Judge (Fast Track) No.1, Jhunjhunu, has, by impugned order, allowed the said application and stayed the proceedings of the suit filed in that court. 4. Shri M.K. Jain, learned counsel for plaintiff/petitioner, argued that there was no justification for staying the proceedings of the suit in the present case because even as per the plea set up by defendant/respondent in the written statement, the valuation of the suit property was Rs.70,00,000/- (Rupees seventy lacs) and the court of Civil Judge (Junior Division), Udaipurwati, had no jurisdiction to entertain such suit. While the suit has been filed by the defendant/respondent before the Civil Judge (Junior Division) only for the purpose of perpetual injunction, the plaintiff/petitioner, in the suit filed by him, has prayed for a decree of eviction, recovery of possession and perpetual injunction and, therefore, the scope of the suit filed before the court of Additional District Judge (Fast Track) No.1, Jhunjhunu, was much wider than the suit filed by the defendant/respondent. 5. Per contra, Shri Amit Gupta, learned counsel for defendant/respondent no.5 Ummed Singh, has opposed the writ petition and submitted that this court, in identical facts situation, directed consolidation of three suits to overcome the difficulty of separate valuation and trial. Learned counsel for defendant/respondent no.5, in this connection, has relied on judgment of this court in Shabir Ahmed Khilji vs. Mehar M. Sadique and Others – RLR 2004 (1) 388 and argued that therein this court, considering that revision petition has remained pending before this court for last ten years, owing to which so far trial was not completed, directed consolidation of three suits and their simultaneous trial. 6. Perusal of the judgment of this court in Shabir Ahmed Khilji, supra, it is clear that in aforesaid case three suits were filed in relation to common dispute in three trial courts putting different valuation of relief. The subject matter of dispute was same, disputed property was same, parties were also same and therefore, considering that there was possibility of conflicting and contradictory orders, this court under suo motu powers under Section 24 of the Code of Civil Procedure ordered the aforesaid three suits to be consolidated and transferred these all to one court i.e. court of Additional District Judge, where proceedings shall be taken after consolidation of the suits. In that case too, somewhat identical situation was obtaining. Therein, the first suit for declaration and injunction was filed on 08.08.2000 in the court of Civil Judge (Senior Division), Jodhpur. The second suit was filed by one Marwar Muslim Educational Society through its General Secretary, who was defendant in the earlier suit. In the second suit also, the prayer for declaration and injunction was made. Thereafter, a third suit was filed by one Mehar M. Sadique in the court of Additional District Judge after valuing the suit for more than Rs.50,000/-. In that suit too, relief of declaration and injunction was made. In the second suit also, the prayer for declaration and injunction was made. Thereafter, a third suit was filed by one Mehar M. Sadique in the court of Additional District Judge after valuing the suit for more than Rs.50,000/-. In that suit too, relief of declaration and injunction was made. The argument that was raised before this court was that controversy involved in the second and third suit was directly and substantially same, therefore, they should await disposal of first suit. Even when there are different parties, still provisions of Section 10 of the Code of Civil procedure can be invoked and even proceedings of the suit can be stayed under Section 151 of the Code of Civil Procedure. All the suits pertained to the same dispute relating to correctness of election of the members of management committee. The matter reached the High Court in revision petition filed by one Shabir Ahmed Khilji against the order refusing to pass injunction order in one of the suits. This Court in exercise of suo motu power under Section 24 of the Code of Civil Procedure, ordered the Civil Original Suit No.78/2000 and Civil Original Suit No.62/2002 pending in the Court of Additional Civil Judge (Senior Division) No.1, Jodhpur, and in the court of Civil Judge (Junior Division) No.1, Jodhpur, respectively, to be withdrawn and transferred to the court of Additional District Judge No.3, Jodhpur, where the third suit was pending. It was further directed that since the Civil Original Suit No.78/2000 was the earliest suit, therefore, the rest two suits be consolidated with the Civil Original Suit No.78/2000. 7. In the facts of the present case, it is considered expedient to adopt the same course. This is also considered to be a fit case for exercise of suo motu powers of this court under Section 24 of the Code of Civil Procedure for withdrawal of the civil suit pending in the court of Civil Judge for its consolidation and trial with the suit pending in the court of Additional District Judge, particularly when it is not in dispute that the property with regard to which both the parties are in litigation with each other is the same and parties are also same. Considering that while suit filed by the defendant/respondent was only for the purpose of injunction, whereas the suit filed by plaintiff/ petitioner in the present matter, is having much wider scope, being the suit for eviction, recovery of possession and perpetual injunction, and of higher valuation, Civil Suit No.7/2004 pending in the court of Civil Judge (Junior Division), Udaipurwati, Jhunjhunu, is ordered to be withdrawn therefrom and transferred to the court of Additional District Judge (Fast Track) No.1, Jhunjhunu, to be consolidated and tried simultaneously with the Civil Suit No.50/2004 (7/2004) pending in that court. 8. Writ petition accordingly stands disposed of.