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2022 DIGILAW 1268 (RAJ)

Sushma Dayal W/o Shri Jitendra Dayal v. Lodha Filling Station, Proprietor Shri Praveen Singh Lodha S/o Late Shri Fateh Singh Lodha

2022-04-25

VIJAY BISHNOI

body2022
ORDER : S.B. Civil Writ Petition No. 2129/2021 1. These writ petitions have been filed on behalf of the petitioner/defendants being aggrieved with the orders dated 21.11.2020 and 02.09.2021 passed by the Judge, Commercial Court, Udaipur (hereinafter to be referred as ‘the trial court’) in Suit No.81/2019. 2. The trial court vide order dated 21.11.2020 dismissed the application filed under Section 151 CPC on behalf of the petitioner/defendants with a prayer for consolidating the Suit Nos.81/2019 and 198/2018 and vide order dated 02.09.2021 dismissed another application preferred under Section 151 CPC on behalf of the petitioner/defendants with a prayer to stay the proceedings of Suit No.198/2018 pending before it. 3. Brief facts of the case are that the respondent/plaintiff-Lodha Filling Station (hereinafter to be referred as ‘the respondent/plaintiff–firm’) through its proprietor Praveen Singh Lodha filed the Suit No.81/2019 (earlier Suit No.18/2017) before the District Court, Udaipur against the petitioner/defendants for recovery of an amount of Rs.25,30,000/-. In the said suit, the proprietor of respondent/plaintiff-firm has contended that he is operating a retail outlet of petroleum products and the petitioner/defendants got filled the diesel worth of Rs.37,27,231.91/-in the tankers owned by them during the period 01.04.2014 to 31.03.2015, however, has paid part amount of Rs.17,83,887/-and has not paid the remaining amount of Rs.19,43,344.91/-. It is alleged that despite repeated request, the said outstanding amount has not been paid, therefore, the respondent/plaintiff-firm is entitled for recovery of the said amount along with the interest and notice expenses. 4. The petitioner/defendants have filed written statements in the Suit No.81/2019 (earlier Suit No.18/2017) and denied the averments of the plaint while claiming that they did not purchase any diesel for their tankers from the respondent/plaintiff-firm and have alleged that the outstanding account of the respondent/plaintiff-firm is fallacious and untrue. The petitioner/defendants have alleged that the proprietor of the respondent/plaintiff-firm and the petitioner/defendant No.1 are in the same business and they become known to each other and on the advise of proprietor of the respondent/plaintiff-firm, the petitioner/defendant No.1 purchased the tankers and started transportation business. It is also alleged that the transportation business of the petitioner/defendants in the name of Salasar Logistics is taken care by proprietor of the respondent/plaintiff-firm viz. It is also alleged that the transportation business of the petitioner/defendants in the name of Salasar Logistics is taken care by proprietor of the respondent/plaintiff-firm viz. Praveen Singh Lodha and in that process he got prepared stationery of business of Salasar Logistics including various seals from petitioner/defendant No.1 in the name of business need and thereafter committing fraud and has prepared some forged documents. 5. The respondent/plaintiff-firm filed the Suit No.81/2019 (earlier Suit No.18/2017) agner/defendants before the District Judge, Udaipur on 14.02.2017, however, during the pendency of the said suit, another Suit No.198/2018 (earlier Suit No.201/2018) was filed against them before it on behalf of Shri Rajendra Suri Travels (hereinafter to be referred as ‘the plaintiff-firm) through its proprietor Praveen Singh Lodha for recovery of an amount of Rs.77,10,770/-alleging that the petitioner/defendants took loan of Rs.42,20,000/-from plaintiff-firm from time to time for a period running between 29.07.2013 to 07.07.2014, however, the said loan amount has not been repaid and as such the petitioner/defendants is entitled to recovery of Rs.42,20,000/-along with the interest of Rs.34,90,770/-in total Rs.77,10,770/-. 6. In the said suits, the petitioner/defendants submitted the written statements and alleged that no such loan has every been taken by them. In the written statements, similar allegations have been levelled as levelled in the written statements of Suit No.198/2018 (earlier Suit No.201/2018) contending that proprietor of Shri Rajendra Suri Travel viz. Praveen Singh Lodha has committed forgery while preparing some forged documents and on the basis of that this false demand has been raised. 7. The petitioner/defendants filed an application under Section 151 CPC before the trial court in Suit No.81/2019 with a prayer to consolidate the Suit No.81/2019 and 198/2018 on the ground that the parties in the said suits are same and both the suits are for recovery of certain amounts wherein the defence taken by them is identical and, therefore, both the suits be consolidated and heard together. The said application came to be dismissed by the trial court vide order dated 21.11.2020, however, against which the petitioner/defendants have preferred one of the present writ petition bearing S.B. Civil Writ Petition No.2129/2021. During the pendency of S.B. Civil Writ Petition No.2129/2021, the petitioner/defendants have moved another application under Section 151 CPC before the trial court with a prayer that the trial of the Suit No.198/2018 be stayed till the decision of S.B. Civil Writ Petition No.2129/2021. During the pendency of S.B. Civil Writ Petition No.2129/2021, the petitioner/defendants have moved another application under Section 151 CPC before the trial court with a prayer that the trial of the Suit No.198/2018 be stayed till the decision of S.B. Civil Writ Petition No.2129/2021. The trial court vide order dated 02.09.2021 has rejected the said the application. Hence, these writ petitions. 8. Learned counsel for the petitioner/defendants has argued that the trial court has grossly erred in dismissing the application filed on behalf of the petitioner/defendants for consolidating both the suits. It is submitted that though, both the suits have been filed by two separate firms but the proprietor of the said firms is the same person viz. Praveen Singh Lodha and essentially he has demanded recovery of certain amounts from the petitioner/defendants, wherein the defence of the petitioner/defendants is identical. It is further submitted that the consolidation of the above referred two suits would save the parties from multiplicity of the proceedings, delay and expenses. It is argued that when the substantial similarity is there in two suits it is advisable to consolidate both the suits for trial and decision. 9. Learned counsel for the petitioner/defendants has, therefore, prayed that the impugned order dated 21.11.2020 passed by the trial court of dismissing the application filed by the petitioner/defendants for consolidating of two suits is liable to be set and the trial court be directed to consolidate the above referred both the suits for trial and to proceed further thereafter. 10. In support of the above contention, learned counsel for the petitioner/defendants has placed reliance on the decision dated 19.02.2016 rendered by the Coordinate Bench of this Court in Narendra Singh Vs. Jai Singh & Ors. reported in 2016(2) DNJ (Raj.) 719. 11. Per contra, learned counsel for the respondent/plaintiff-firm has vehemently opposed the writ petitions and argued that the trial court has not committed any illegality in passing the order dated 21.11.2020 as the cause of action in both the suits are different and for recovery of different amount pertaining to different period. It is, therefore, prayed that there is no merit in these writ petitions and the same are liable to be dismissed. 12. It is, therefore, prayed that there is no merit in these writ petitions and the same are liable to be dismissed. 12. In support of the above contention, learned counsel for the respondent/plaintiff-firm has placed reliance on the decision dated 13.01.2006 rendered by the Coordinate Bench of this Court at Bench Jaipur in M/s Anurag & Co. & Anr. Vs. Addl. Dist. Judge & Ors. reported in AIR 2006 Rajasthan 119. 13. Heard learned counsel for the parties and carefully scrutinizing the plaints of both the above referred suits as well as the written statements filed on behalf of the petitioner/defendants. 14. The first Suit No.81/2019 (earlier Suit No.18/2017) has been filed on behalf of Lodha Filling Station through its proprietor Praveen Singh Lodha for recovery of certain amount, which, as per it, is due against the petitioner/defendants, as they have failed to make the payment of diesel purchased by them for their tankers. 15. The second Suit No.198/2018 (earlier Suit No.201/2018) has been preferred on behalf of Shri Rajendra Suri Travels through its proprietor Praveen Singh Lodha for recovery of certain amounts, which, as per it, was delivered to the petitioner/defendants from time to time as a loan, which has not been paid by them. 16. Though, both the suits have been filed by two separate firms but the proprietor of the said firms is same person viz. Praveen Singh Lodha and the defendants of both the suits are same. 17. From the written statements filed on behalf of the petitioner/defendants in both the suits, it is clear that the defence taken by them is identical. 18. The decision rendered by the Coordinate Bench of this Court at Bench Jaipur in the case of M/s. Anurag & Co. (supra), on which learned counsel for the respondent/plaintiff-firm has placed reliance, is quite distinguishable from the facts of present cases as in that case the Coordinate Bench of this Court has came to the conclusion that two suits are different in nature and the parties of the that suits are also not identical. Whereas in the present cases, as observed earlier, though, the suits have been filed by two different firms but the proprietor of both the firms is the same person and the suits are for recovery of certain amount against the same parties and the defence taken by the defendants is also identical. 19. Whereas in the present cases, as observed earlier, though, the suits have been filed by two different firms but the proprietor of both the firms is the same person and the suits are for recovery of certain amount against the same parties and the defence taken by the defendants is also identical. 19. In such circumstances, the decision rendered by the Coordinate Bench of this Court at Bench Jaipur in the case of M/s. Anurag & Co. (supra) is of no help to the respondent/plaintiff-firm rather the relevant circumstances, figured out by that Bench in that case, for consolidating the civil suits clearly covers the present cases, which reads as under :- “28. The upshot of aforesaid discussion of judgments is that some of the relevant circumstances for consolidating the civil suits are as follows :- (i) The parties are substantially same. (ii) Complete or even substantial and sufficient similarity of the issues arising for decision in two suits. (iii) Common evidence is to be led, if parties are substantially the same, if only one party is common then burden of proof of facts in issue will be on different person and no common evidence can be led. (iv) The consolidation in the aforesaid circumstances will fulfill the object of consolidation. Any other circumstances may be relevant then also the object of consolidation will be decisive for passing appropriate order.” 20. This Court is of the opinion that the consolidation of suits can be ordered for meeting the ends of justice and to avoid multiplicity of litigation. The parties are not required to adduce the same and similar documentary or oral evidence twice in two different trials in two suits. The evidence can be recorded at once rather in two suits. 21. Having carefully scrutinizing the pleadings of both the suits, this Court is of the opinion that there is substantial similarity of the issues arising for decision in two suits and, therefore, to avoid multiplicity of litigation and to save the parties from producing the same documentary or oral evidence twice over the two suits, it is justifiable to consolidate the two suits. 22. In view of the above discussions, S.B. Civil Writ Petition No.2129/2021 is allowed. 22. In view of the above discussions, S.B. Civil Writ Petition No.2129/2021 is allowed. The impugned order dated 21.11.2020 passed by the trial court of dismissing the application of the petitioner/defendants for consolidating the Suit Nos.81/2019 and 198/2018 is hereby set aside and the trial court is directed to consolidate the Suit Nos.81/2019 and 198/2018 and thereafter proceed further in accordance with law. 23. Since, S.B. Civil Writ Petition No.2129/2021 is allowed and the impugned order dated 21.11.2020 passed by the trial court is set aside in that writ petition, no further order is required to be passed in S.B. Civil Writ Petition No.14127/2021 and the same is, therefore, disposed of. 24. Stay petitions are disposed of accordingly.