Research › Search › Judgment

Allahabad High Court · body

2023 DIGILAW 2646 (ALL)

Kamla Kapoor (Since Deceased) v. Neelam Kapoor

2023-11-23

J.J.MUNIR

body2023
JUDGMENT : 1. This civil revision is directed against the order of Smt. Neelu Mainwal, the then Civil Judge (Sr. Div.), Gautam Budh Nagar dated 09.12.2019, ordering a stay of Original Suit No.654 of 2017, under Section 10 of the Code of Civil Procedure, 1908 (for short, 'the Code'). 2. The facts giving rise to this revision are these: Kamla Kapoor, wife of the late Maharaj Kumar Kapoor, instituted Original Suit No.465 of 2015, seeking reliefs of declaration and permanent prohibitory injunction. Kamla Kapoor has since died and has been substituted in the suit by her daughter, Smt. Ruchi Sharma as plaintiff No.1/1. Kamla Kapoor, the deceased, represented by her legal representative, shall hereinafter be called 'the plaintiff'. Original Suit No.465 of 2015, which shall, for the sake of brevity, be called hereinafter as 'the suit of 2015', was instituted by the plaintiff against Neelam Kapoor, widow of the late Rajan Kapoor, Ravindra Kapoor and Pallavi Kapoor, the son and the daughter respectively of the late Rajan Kapoor, besides Ritika Madan, widow of the late Pradeep Madan. Apart from four of these defendants, the fifth defendant to the suit of 2015 are the New Okhla Industrial Development Authority, represented by its Chairman/ Chief Executive Officer. The plaintiff's case in the suit of 2015 is that she is the co-owner in possession of a house bearing No. C-60, Sector 50, NOIDA, District Gautam Buddh Nagar. It is the plaintiff's case that she is co-owner of the house aforesaid to the extent of a 3/4th share. The house, above detailed, shall hereinafter be called 'the suit property'. 3. Shorn of unnecessary detail, suffice it to say that defendant No.5 to the suit of 2015, who are respondent No.5 to this revision, the New Okhla Industrial Development Authority, represented by its Chairman/ Chief Executive Officer (for short, 'the NOIDA'), allotted land comprising the suit property in favour of one Sant Lal Sodhi on 21.08.1996. A registered lease deed was executed in favour of Sodhi by the NOIDA on 27.11.1997. On the 4th of April, 2001, Sodhi, through the holder of his power of attorney, Deepak Jain, executed an agreement to sell in favour of the plaintiff, her son Rajan Kapoor and the plaintiff's husband Maharaj Kumar Kapoor. A registered lease deed was executed in favour of Sodhi by the NOIDA on 27.11.1997. On the 4th of April, 2001, Sodhi, through the holder of his power of attorney, Deepak Jain, executed an agreement to sell in favour of the plaintiff, her son Rajan Kapoor and the plaintiff's husband Maharaj Kumar Kapoor. In adherence to the covenants of the agreement to sell last mentioned, Sodhi's attorney, Deepak Jain, executed a deed of transfer dated 23.04.2001 in favour of the plaintiff, Rajan Kapoor and Maharaj Kumar Kapoor, which was duly registered. On and after 23.04.2001, the plaintiff has been in possession of the suit property as its co-owner. Her name was mutated in the records of the NOIDA on 26.06.2001 as a co-owner of the suit property. As ill luck would have it, on 25.06.2013, the plaintiff's son Rajan Kapoor died. He left behind four heirs and LRs, comprising his wife, a son and a daughter, who are defendant Nos.1, 2 and 3 to the suit of 2015 and respondent Nos.1, 2 and 3 to the revision. The fourth LR that Rajan Kapoor left behind was the plaintiff herself, being the deceased's mother. Defendants Nos. 1 to 4 shall hereinafter be called ‘the defendants’. 4. The plaintiff's husband, Maharaj Kumar Kapoor left behind a registered will dated 10.10.2013 in her favour to the effect that in the event of his demise, the entire one-third share in the suit property belonging to him would go to the plaintiff. The plaintiff's son's share was also to the extent of one-third in the suit property and upon its equal division amongst his four heirs, a 1/12th was added to the plaintiff's existing 1/3rd share. The plaintiff, thus, had a 5/12th share according to her, after her son's demise. Apparently, after her husband's death, on the foot of the registered will dated 10.10.2013, the plaintiff sought a declaration to the effect that the registered will dated 10.10.2013 executed by Maharaj Kumar Kapoor in favour of the plaintiff was Maharaj Kumar's last will and testament, in terms of which succession opened out. 5. A declaratory decree was also sought in favour of the plaintiff and against the defendant to the effect that it be declared that the plaintiff was the holder of a 3/4th share in the suit property. 5. A declaratory decree was also sought in favour of the plaintiff and against the defendant to the effect that it be declared that the plaintiff was the holder of a 3/4th share in the suit property. A relief of permanent prohibitory injunction was claimed in the plaintiff's favour and against the defendant to the effect that all the defendants, numbering five, be restrained from interfering with the plaintiff's possession and use of the suit property, and they be further restrained from causing any third party to enter into possession of the suit property, or any part thereof, or mortgage it, or create third party rights therein. The relief further claimed is that the NOIDA be restrained from granting permission to transfer the suit property to the defendants or mortgaging it, without the plaintiff’s consent. 6. Possibly advised that the suit that she had instituted may not bring the desired relief, the plaintiff, in the first instance, made an unsuccessful attempt to seek an amendment to the plaint giving rise to the suit of 2015 to bring in the relief of partition; and failing in that endeavour, instituted the present suit, that is to say, Original Suit No. 645 of 2017 against the same defendants (including the NOIDA), five in number, as those in the suit of 2015. 7. The facts pleaded and the cause of action in Original Suit No.645 of 2017 (for short, 'the suit of 2017') is identical to that in the suit of 2015. But, the relief claimed is different. Here, with a few formal facts introduced, but on an identical case as that in the suit of 2015, the plaintiff sought a decree for partition of her 3/4th share with separate possession after drawing of lots. It was also prayed that if physical partition be not possible, the suit property be valued and appropriate relief granted to the plaintiff, permitting her to purchase the defendants' share. A further decree for mesne profits at the rate of Rs.1,25,000/-per month was sought against defendant Nos.1, 2 and 3 to the suit of 2017, until such time that partition is finally effected. 8. By the order impugned, the learned Trial Judge has ordered the suit of 2017 stayed under Section 10 of the Code. 9. Aggrieved, this revision has been preferred by the plaintiff. 10. Heard Mr. Ashutosh Yadav, learned Counsel for the plaintiff and Mr. 8. By the order impugned, the learned Trial Judge has ordered the suit of 2017 stayed under Section 10 of the Code. 9. Aggrieved, this revision has been preferred by the plaintiff. 10. Heard Mr. Ashutosh Yadav, learned Counsel for the plaintiff and Mr. Abhijeet Mukherjee, learned Counsel appearing for the defendants. 11. It is submitted by Mr. Ashutosh Yadav, learned Counsel for the plaintiff that the impugned order is cryptic and non-speaking. The Trial Judge does not say why the provisions of Order IV-A of the Code would not be attracted, paving way for consolidation of the two suits. It is urged that both the suits are pending in the same Court, that is to say, the Civil Judge (Sr. Div.), Gautam Budh Nagar, and can conveniently be consolidated, tried and decided together, invoking the provisions of Order IV-A of the Code. The Court has power to consolidate suits in appropriate cases. It is impressed upon this Court by Mr. Yadav that if the course of consolidation were adopted, not only precious time of the Trial Court would be saved, but also costs and time of the litigating parties. Consolidation is a mechanism, according to learned Counsel, which promotes convenience of parties and the Trial Court as well. It is urged that the jurisdiction to consolidate suits arises where there are two or more suits pending in the same Court and it appears to the Court that some common questions of law and fact arise in both suits. The learned Counsel has relied upon the authority of the Supreme Court in Prem Lala Nahata and another v. Chandi Prasad Sikaria, (2007) 2 SCC 551 . 12. The learned Counsel, honing his argument, further submits that Section 10 of the Code does not forbid consolidation of suits. Rather, it employs the words 'No Court shall proceed with the trial of any suit'. Section 10 does not prevent simultaneous hearing of a later and a previous suit, after consolidation of the two, if the matter in issue in both is directly and substantially the same. Section 10 does not also take away the inherent powers of the Court to consolidate suits ex debito justitiae. It is urged that this was the holding of this Court in P.P. Gupta v. East Asiatic Co. Bombay, AIR 1960 All 184 . Mr. Section 10 does not also take away the inherent powers of the Court to consolidate suits ex debito justitiae. It is urged that this was the holding of this Court in P.P. Gupta v. East Asiatic Co. Bombay, AIR 1960 All 184 . Mr. Yadav has drawn the attention of this Court to the decision of the Uttarakhand High Court in Rakesh Sakseria v. Kumud & others, 2016 SCC OnLine Utt 1371, where the High Court consolidated two original suits and the order under challenge, by which proceedings of the subsequent suit were stayed, was set aside. The learned Counsel for the plaintiff has also called in aid the decision of this Court in Mohammed Yunus and others v. Rahees Ahmed, 2018 (3) ADJ 633 . 13. It is emphasized that if the two suits are consolidated and decided together, there are no chances of conflicting opinions. In this connection, reliance is placed upon Rajendra Prasad v. Smt. Komal Devi and others, 2018 (7) ADJ 292 . Mr. Yadav submits that Order IV-A of the Code expressly empowers the Trial Judge to consolidate suits, if he finds it expedient in the interest of justice to direct a joint trial and all such suits can then be decided upon the evidence recorded in all or any such proceedings. Reliance in this connection is placed upon the decisions of this Court in Anandan Gupta v. Navin Agarwal and others, 1984 SCC OnLine All 451 and K.K. Gupta v. Civil Judge (Sr. Div.), Gonda and others, 1999 SCC OnLine All 1009. 14. Repelling the submissions of the learned Counsel for the plaintiff, Mr. Abhijeet Mukherjee, learned Counsel for the defendant has urged that the moot question involved in this case is whether the subsequent suit, which is one for partition, can be consolidated with the previous suit, seeking a mere declaration of title to the suit property, the parties and the subject matter of the suit being the same. Mr. Mukherjee has distinguished the decision of this Court in P.P. Gupta (supra) saying that the present case is not at all one that is appropriate for consolidation of the two suits. He impresses upon the Court that in the present case, the plaintiff in both the suits involved are the same, whereas in P.P. Gupta, the facts were completely different. Mukherjee has distinguished the decision of this Court in P.P. Gupta (supra) saying that the present case is not at all one that is appropriate for consolidation of the two suits. He impresses upon the Court that in the present case, the plaintiff in both the suits involved are the same, whereas in P.P. Gupta, the facts were completely different. In P.P. Gupta, the plaintiff had filed the first suit in April, 1955 against the defendant-company and subsequently, the defendant company had filed the second suit against Gupta in October, 1956. The parties alleged breach of contract against each other and both suits arose out of the same transaction. 15. Here, the suit of 2015 is one for declaration of the plaintiff's share in the suit property. Prior to determination of the issue whether such share exists or not, the plaintiff instituted the subsequent suit seeking partition of her share in the suit property based on the assumption that she has that share. The plaintiff in the suit of 2015, unless she gets her title determined, cannot get the suit property partitioned, inasmuch as proof of her entitlement to the share asserted is a condition precedent for the grant of partition. The continuance of the suit of 2017, which is a subsequent suit, is contingent upon the findings in the suit for declaration. It is emphasized by Mr. Mukherjee that this Court in Nasawar Ali and others v. Abdul Bari and others, 2020 (138) ALR 77 rejected a revision seeking consolidation of suits on the ground that the nature of the two suits is different, and, relief in the subsequent suit is contingent upon the findings recorded in the first suit. He has drawn the attention of the Court to the following remarks in Nasawar Ali (supra) : “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. 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.” 16. It is urged by Mr. Mukherjee that the declaratory suit and the partition suit, therefore, are two suits of different nature. The evidence to be adduced in the two suits is to serve an entirely different purpose. If the same are consolidated and tried together, there is a likelihood of grave prejudice being caused to the defendant. On the last mentioned issue, the learned Counsel for the defendants has pressed in aid the decision of this Court in Sanjay Khanduja v. Smt. Usha Devi and another, 2017 (8) ADJ 470 , where it has been observed : “9. …...... Though sale-deed dated 17.1.1985 may have been executed pursuant to agreement dated 28.3.1984, but the essential flavour of the two suits was completely different and the nature of evidence to be led in the two suits would have to serve entirely different purpose. …...... Though sale-deed dated 17.1.1985 may have been executed pursuant to agreement dated 28.3.1984, but the essential flavour of the two suits was completely different and the nature of evidence to be led in the two suits would have to serve entirely different purpose. Under the circumstances, once the trial Court exercised its discretion after recording cogent reasons that it was not a fit case where two suits should be consolidated, there was no jurisdictional error in the order passed by the trial Court which should have been interfered with in exercise of power under Section 115 of the Code of Civil Procedure, particularly in view of the mandate contained in sub-section (3) of Section 115 C.P.C., as applicable in the State of U.P. vide U.P. Act No. 14 of 2003, which provides that superior Court shall not, under the said Section, vary or reverse any order made except where,- (i) The order, if it had been made in favour ofthe party applying for revision, would have finally disposed of the suit or other proceeding, or (ii) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it is made. 10. In the instant case, by setting aside of the order passed by the trial Court neither suit nor proceeding would be disposed of. Further, if the order is allowed to stand there would be no failure of justice because the parties can still lead there respective evidence and prove there respective cases. And there is no question of causing any irreparable loss to any party by not consolidating the suit. Because mere inconvenience to a party would not fall within the ambit of irreparable loss. Hence, the revisional Court over looked the restriction placed upon it by sub-section (3) of Section 115 C.P.C., as applicable in the State of U.P.” 17. It is next submitted by the learned Counsel for the defendants that the decision in K.K. Gupta (supra) as also that in Anandan Gupta (supra) are of no assistance to the plaintiff, because both these authorities lay down principle in the context of cross-suits filed between parties, whereas in the present case, both the suits were filed by the same party. 18. We have considered the submissions advanced at the Bar carefully and perused the record. 19. 18. We have considered the submissions advanced at the Bar carefully and perused the record. 19. The learned Trial Judge has gone on to stay the proceedings of the subsequent suit, holding that all the ingredients to attract the bar under Section 10 of the Code are disclosed. 20. Here, what is noteworthy is that both the suits are pending before the same Court. One of the primary objectives of Section 10 of the Code is to avoid conflict of judgment on issues that are directly and substantially the same, arising between the same parties or under whom they or any of them claim, litigating under the same title. 21. In this Court, it was held quite long ago in P.P. Gupta that Section 10 of the Code does not go to the root of the Court's jurisdiction trying the subsequent suit, but lays down a rule of procedure, that does not forbear consolidation and simultaneous trial of two suits, one instituted earlier and the other later between the same parties involving issues that are directly and substantially the same. In P.P. Gupta, it was held : “26. In my view, therefore, the words "shall not proceed in any suit" in Sec. 10 C.P.C. were intended to bar the separate trial of any suit in which the matter in issue was also directly and substantially in issue in a previously instituted suit between the same parties in the same court or in any other court. But these words do not apply to the simultaneous hearing of a later and an earlier suit, after consolidation of the two, if the matter in issue in both is directly and substantially the same. Section 10 was not intended to take away the inherent power of the Court to consolidate in the interests of justice in appropriate cases different suits between the same parties in which the matter in issue is substantially the same. There is no conflict in the principle and purpose underlying Sec. 10 and the inherent power of the Court to consolidate different suits in appropriate cases. Both are meant to prevent multiplicity of litigation between the same parties. Any interpretation of Sec. 10 which takes away the power of the Court to consolidate suits would hinder the policy and purpose of Sec. 10 itself.” 22. Both are meant to prevent multiplicity of litigation between the same parties. Any interpretation of Sec. 10 which takes away the power of the Court to consolidate suits would hinder the policy and purpose of Sec. 10 itself.” 22. It must be remarked that when P.P. Gupta was decided, there was no provision in the Code akin to Order IV-A of the Code, which was introduced in the First Schedule vide the Uttar Pradesh Civil Laws (Reforms and Amendment) Act, 1976 w.e.f. December 31, 1976. The Court in appropriate cases was always thought to have had the inherent power to consolidate two suits between the same parties relating to the same subject matter, giving rise to issues that were directly and substantially involved in both. 23. The same principle was followed in Anandan Gupta (supra) and K.K. Gupta (supra). In K.K. Gupta, this Court observed : “5. Section 10, CPC deals with the stay of suits on the ground that no court shall proceed with the trial of any suit in which matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties and at the same time Order 4-A of the Code of Civil Procedure prescribes that when two or more suits or proceedings are pending in the same court, and the court is of opinion that it is expedient in the interest of justice, it may by order direct their joint trial, whereupon all such suits and proceedings may be decided upon the evidence in all or any such suits or proceedings. These two provisions were considered in Anandan Gupta v. Navin Agarwal. [AIR 1984 Alld. 387.] It was held that these provisions expressly empowers the trial court to consolidate the suits if it was expedient in the interest of justice to direct a joint trial. There is no doubt that looking to the facts involved in the two suits before the trial court, a joint trial would avoid the multiplicity of proceedings and it would be expedient in the interest of justice to have a joint trial of the two suits.” 24. There is no doubt that looking to the facts involved in the two suits before the trial court, a joint trial would avoid the multiplicity of proceedings and it would be expedient in the interest of justice to have a joint trial of the two suits.” 24. This Court may remark at this stage that reliance placed by the learned Counsel for the plaintiff upon the decision of the Supreme Court in Prem Lala Nahata (supra) is misplaced, because in that case before their Lordships, there was no issue about the right of the Court to consolidate trials pitted against the bar of res subjudice that underlies Section 10 of the Code. Prem Lala Nahata was a case about the power of the Court to consolidate suits in appropriate cases generally; not in the context of the embargo under Section 10 of the Code. 25. The decision of this Court in Sanjay Khanduja (supra) relied upon by the defendants may be of little assistance to them for reason that the principle there was laid down in the context of exercise of the Court's revisional jurisdiction to interfere with an order refusing to consolidate suits on the ground that the mandate carried in sub-Section (3) of Section 115 of the Code, as amended in its application to the State of Uttar Pradesh vide U.P. Act No.14 of 2003, was not satisfied. 26. The other principle, on which the decision in Sanjay Khanduja turned, was that the two suits were essentially and completely different and the evidence led there would be for entirely different purpose. So far as the holding on the embargo under Section 115 of the Code is concerned, this is a case where consolidation, if not permitted, may work serious injustice to the plaintiff. The reason is that there is a possibility that at the trial of the first suit, where the cause of action and the evidence is common with the second suit, the relief claimed may or may not be found tenable, even if the evidence establishes the plaintiff's case. It is, therefore, eminently a fit case, where both suits ought to be tried together with evidence recorded in one or the other suit, as envisaged under Order IV-A of the Code. 27. It is, therefore, eminently a fit case, where both suits ought to be tried together with evidence recorded in one or the other suit, as envisaged under Order IV-A of the Code. 27. The other principle on which Sanjay Khanduja is founded is also not attracted, because a reading of the plaints and considering the causes of action involved in both suits spare no shadow of doubt that not only the issues are directly and substantially the same, relating to the same subject matter, but would involve identical evidence. The parties may convince or the Court may think of recording evidence in one or the other suit, as said earlier, to effectively adjudicate upon the rights of parties in both suits. The two suits are almost the same, except for the form of relief sought in the two being different. 28. This Court in Rajendra Prasad (supra), a relatively recent decision, had occasion to consider the interplay between the restrictive principle in Section 10 and the facilitative one in Order IV-A of the Code. In Rajendra Prasad, it was held : “10. In the considered opinion of the Court, the matter in issue in the earlier suit is not directly and substantially in issue in the instant suit. The object underlying Section 10 is to prevent courts of concurrent jurisdiction from simultaneously trying two parallel suits in respect of the same matter in issue so as to avoid conflicting findings being recorded. The fundamental test to attract Section 10 is whether on final decision being reached in the previous suit, such decision would operate as res judicata in the subsequent suit or not. The decision in the previous suit as to whether the petitioner was competent to execute sale deed in respect of the entire suit property or not, would in no manner operate as res judicata in the instant suit, as the issues, as discussed above, are entirely different. Identity of relief, nor identity of the property would make Section 10 applicable, as misunderstood by the courts below. They have acted in excess of their jurisdiction in staying the proceedings of the suit, by applying Section 10 CPC. 11. It is not disputed before this Court that by an order dated 25.9.2014 passed in Civil Revision No.407 of 2014, this Court has allowed the plea of the petitioner for consolidation of both the suits under Section 4-A CPC. They have acted in excess of their jurisdiction in staying the proceedings of the suit, by applying Section 10 CPC. 11. It is not disputed before this Court that by an order dated 25.9.2014 passed in Civil Revision No.407 of 2014, this Court has allowed the plea of the petitioner for consolidation of both the suits under Section 4-A CPC. Since both the suits have already been consolidated and are being tried together, therefore, even otherwise, there is no chance of conflicting findings being recorded.” 29. Though, one of the remarks in Rajendra Prasad does say that what attracts Section 10 of the Code is not the identity of the property or the relief, but the issues that arise between parties, which would seem to further the defendant's contention, but the concluding remarks in Paragraph No.11 of the report make it pellucid that a consolidation of the two suits would eschew the possibility of conflicting findings on the same issue. 30. This Court would understand it in the manner that the principle ultimately is to avoid conflicting findings on one hand and facilitate hearing of the two suits, one previous and the other subsequent together, on the other, if identical issues relating to the same subject matter, arise between the same parties, in order that the rights of parties may be completely and effectively pronounced upon by the Court. 31. This Court may further add that the impugned order has not assigned any reason why the Court has not considered the option of exercising powers under Order IV-A of the Code. The Trial Judge has parted with the issue with a cryptic remark to the effect that Order IV-A of the Code is only there for the convenient and quick recording of evidence and a quick disposal (of suits). This remark by the Trial Court with no reasons assigned, in our opinion, leads to an instance of failure to exercise jurisdiction. That this course would occasion a failure of justice or cause irreparable injury to the plaintiff, we think is involved in this case because the relief claimed in the suit of 2015 may be the subject of much issue, if it does not accord with the cause of action that the plaintiff has set up in that suit. That this course would occasion a failure of justice or cause irreparable injury to the plaintiff, we think is involved in this case because the relief claimed in the suit of 2015 may be the subject of much issue, if it does not accord with the cause of action that the plaintiff has set up in that suit. Again, this expression of opinion of ours is not to be understood as one on merits, but limited to the purpose of a decision of the present revision. It is also clarified that the conclusions that we reached here, will not preclude the defendant from raising all such pleas, as may be advised to resist the suit, other than the one that we have decided, arising from the fact that two successive suits have been filed by the plaintiff. If any such plea(s) is/are raised, it would be ever so open to the Trial Court to judge the same on their own merits, without being influenced by our remarks in this judgment, either way. 32. Issue No.(8) is answered in the negative with a direction that the Trial Court will consolidate the two suits and try them together. The trial of the two suits shall be expedited and decided, as far as possible within six months next. 33. In the result, this revision succeeds and is allowed. The impugned order dated 09.12.2019 passed by the Civil Judge (Sr. Div.), Gautam Buddh Nagar is hereby set aside and reversed. 34. Costs easy.