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2019 DIGILAW 2457 (ALL)

Nisawar Ali v. Abdul Bari

2019-10-31

ANJANI KUMAR MISHRA

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JUDGMENT : Anjani Kumar Mishra, J. 1. Heard learned Counsel for the revisionists. 2. The instant revision is directed against the order dated 9.8.2019 passed on Application 73Ga filed by the revisionist in Suit No. 920 of 2018, Abdul Bari v. Nisawar Ali under Order IV-A, C.P.C. read with section 151, C.P.C., for consolidating the suit with Suit No. 864 of 2018 filed by the revisionist. The aforesaid application has been rejected by the order impugned. 3. Suit No. 864 of 2018 has been filed by the revisionists for permanent, injunction claiming on the basis of a registered sale-deed executed in their favour by Israt Jalal Khan, Power of Attorney of Abdul Bari. 4. Suit No. 920 of 2018 has been filed by Abdul Bari for cancellation of the Power of Attorney dated 27.8.2012 allegedly executed by him in favour of Israt Jalal Khan as also for cancellation of the sale-deed executed by the alleged power of attorney holder. 5. It appears that the ground in this suit is that Israt Jalal Khan had been granted a Power of Attorney for a period of six months only to manage the property and that he had not been granted the power to execute a sale-deed. 6. The contention of Counsel for the revisionist is that the subject-matter in the two suits is the same, namely the land which the revisionists have purchased by the Power of Attorney holder of Abdul Bari. 7. It is contended that the main parties in both the suits are the same and that identical evidence would be required for deciding the two suits. Therefore, to avoid multiplicity and conflicting judgments, the application was filed by the revisionist to consolidate two suits. This application has wrongly and illegally been rejected by the Trial Court. 8. To support his contention that both the suits were liable to be consolidated reliance has been placed upon the following two judgments: 1. Amardeep and others v. District Judge, Lalitpur and others : 2007 (67) ALR 574. 2. Krishna Kanhaiya Gupta v. Civil Judge (S.D.) Gonda and others 2000 (1) JCLR 779 (All.)(LB). 9. I have considered the submissions made by Counsel for the revisionist and perused the record, especially the impugned order. 10. The Trial Court has rejected the revisionists' application on the ground that not all the parties in the two suits are the same. 2. Krishna Kanhaiya Gupta v. Civil Judge (S.D.) Gonda and others 2000 (1) JCLR 779 (All.)(LB). 9. I have considered the submissions made by Counsel for the revisionist and perused the record, especially the impugned order. 10. The Trial Court has rejected the revisionists' application on the ground that not all the parties in the two suits are the same. Besides, one suit is for permanent injunction of a sale-deed while the other and subsequent suit is for cancellation of the power of attorney and the sale-deed executed by the power of attorney holder. 11. The Trial Court, in my considered opinion, has rightly observed that the crucial issue in both the suits is different. In the subsequent suit, the issue is with regard to the general power of attorney executed by Adbul Bari in favour of Israt Jalal Khan and whether the Power of Attorney holder was authorized to execute a sale-deed. Suit No. 864 of 2018, the revisionist-plaintiffs is for injunction, claiming title to the land in suit. 12. Insofar as the Power of Attorney is concerned, this issue is between Abdul Bari and the Power of Attorney Israt Jalal Khan. The revisionists who are the plaintiffs in suit for injunction may have an interest in this suit but the same is contingent upon the dispute between the plaintiff and his alleged power of attorney. The case, if any, of the revisionist is at best contingent upon the above noted main dispute. In Suit No. 864 of 2018, the primary dispute is one of title between the revisionist and Abdul Bari, the person who is stated to have executed Power of Attorney in favour of Israt Jalal Khan. 13. Under the circumstances, the Trial Court has rightly rejected the application for consolidating the two suits on the premise that the evidence in the two suits cannot be common. I am in complete agreement with the above reasoning given by the Trial Court, while rejecting the application filed by the revisionist. 14. The judgment in Amardeep (supra), the two suits which were consolidated were for grant of succession certificate claiming on the basis of a Will and the other was for cancellation of the same Will. The facts of the case cited are therefore clearly distinguishable and for the same reason, no benefit can be granted to the revisionist on its basis. The judgment in Amardeep (supra), the two suits which were consolidated were for grant of succession certificate claiming on the basis of a Will and the other was for cancellation of the same Will. The facts of the case cited are therefore clearly distinguishable and for the same reason, no benefit can be granted to the revisionist on its basis. In any case, as noticed above, cancellation of the sale-deed in favour of the revisionist would be contingent upon the relief claimed by Abdul Bari as regards the power of attorney. The power of attorney as noted above, is not subject-matter of dispute between the revisionist and Abdul Bari. 15. In Krishna Kanhaiya Gupta (supra), the Court has observed that two suits, if they relate to the same property, are between the same parties and the matter in issue in both directly and substantially the same, the two suits can be consolidated. In view of what has been observed above, such is not the position in the case at hand. Therefore, the revisionist cannot derive any benefit from the judgment in Krishna Kanhaiya Gupta (supra). 16. In view of what has been stated above and since the impugned order is not found to suffer from any illegality or jurisdictional error, the revision is without merit and is dismissed.