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2024 DIGILAW 1445 (RAJ)

Pushpa Kanwar, Wd/o. Late Sh. Narendra Singh Rathore v. Pratap Singh, S/o. Late Sh. Swaroop Singh Rathore

2024-10-21

KULDEEP MATHUR

body2024
ORDER : (Kuldeep Mathur, J.) 1. These two writ petitions under Article 227 of the Constitution of India have been filed by the petitioners praying for setting aside the impugned orders dated 30.9.2024 (Annex.7 in W.P.No.17527/2024) and (Annex.6 in W.P.No.17468/2024) passed by the learned Additional District and Sessions Judge No.2, Udaipur in C.O Cases. Nos.53/2013: “Pratap Singh v. Chain Singh & Ors.” and 206/2023: “Smt.Pushpa Kunwar & Ors. v. Pratap Singh & Ors.”, whereby the separate applications moved by the petitioners under Section 151 of the Code of Civil Procedure, 1908 seeking consolidation of the above-numbered civil suits have been rejected by separate orders. 2. A perusal of the record of the case indicates that on 28.5.2013, the respondent Pratap Singh filed a suit for partition and permanent injunction against the present petitioners and other proforma respondents. In the said plaint, it was stated that in the year 1969, the father of the plaintiff and defendants (late Shri Swaroop Singh) started a business of snacks (Namkeen) in the name and style of “Indore Namkeen Bhandar”. In due course of time, their sons also joined the said business. The description and details of the properties, of which partition was sought, were mentioned in the Schedule-A attached with the plaint. It was stated in the plaint that Swaroop Singh expired on 10.1.2012. It was further stated in the plaint that one of the brothers namely Shri Narendra Singh unfortunately expired in an accident on 5.1.2010 and therefore, his legal heirs were also impleaded as party defendants. In the plaint, it was averred that the properties mentioned in Schedule-A belong to a joint hindu family, wherein all the parties have their respective shares, therefore, the decree for partition was prayed to be passed. 3. The case file further reveals that after about 10 years of the pendency of the above-mentioned C.O. Case No.53/2013, the petitioners filed a suit (C.O. Case No. 206/2023) seeking partition of the joint hindu properties mentioned in Para No.8 to 15 and permanent injunction against the respondents. The present petitioners in the suit filed by them also claimed a sum of Rs.30,000/- per month from the year 1969 till the matter is pending adjudication. Further, the registration made in the name of “M/s. I.N.B.Foods Pvt.Ltd.” in place of “Indore Namkeen Bhandar” on 28.3.2012 was prayed to be declared null and void. The present petitioners in the suit filed by them also claimed a sum of Rs.30,000/- per month from the year 1969 till the matter is pending adjudication. Further, the registration made in the name of “M/s. I.N.B.Foods Pvt.Ltd.” in place of “Indore Namkeen Bhandar” on 28.3.2012 was prayed to be declared null and void. The petitioners herein also claimed their respective shares in the. 4. The record of the case further indicates that the petitioners herein moved separate applications under Section 151 of the Code of Civil Procedure, 1908 in C.O. Case No. 53/2013 and C.O. Case No. 206/2023 with a prayer for consolidation of both the suits. The petitioners averred in the applications that the issue in both the suits is regarding partition of the joint hindu family properties between the common parties, therefore, both the suits be consolidated and be heard together for proper adjudication of the disputed questions. 5. The learned trial court i.e. learned Additional District No.2, Udaipur on 30.9.2024 rejected the applications filed in C.O. Case No. 53/2013 and C.O. Case No. 206/2023 under Section 151 CPC seeking consolidation of both the suites, by separate orders. 6. Learned counsel for the petitioners vehemently and fervently submitted that the issue arising for decision in both the civil suits is substantially common. Almost the same set of oral and documentary evidence would be needed to determine the issues of facts and law arising for decision in two separate suits. Learned counsel submitted that a consolidation of both the suits will give a clear picture of the dispute in question and will avoid passing of conflicting decrees for the property in question. It was urged that the learned trial court with a view to avoid the possibility of two different findings in two suits preferred with the same set of facts and being related to same properties, ought not to have rejected the applications filed by the petitioners under Section 151 CPC. 7. Learned counsel further submitted that since the facts and evidence in both the suits are common, the issues to be determined and decided in both the suits are also common. Thus, in case, separate trial in both the suits including leading of evidence on the same of set of facts is permitted, the same would not only waste the precious time of Court but also may occasion in conflicting decrees. Thus, in case, separate trial in both the suits including leading of evidence on the same of set of facts is permitted, the same would not only waste the precious time of Court but also may occasion in conflicting decrees. Learned counsel thus implored the Court to quash and set aside the impugned orders dated 30.9.2024 and allow the application under Section 151 CPC filed by the petitioner for consolidation of the above suits i.e. C.O. Case No. 53/2013 and C.O. Case No. 206/2023 in the interest of justice. 8. In support of the above arguments, reliance was placed on the following judicial precedents: i. Chitivalasa Jute Mills Vs. Jaypee Rewa Cement reported in (2004)3 SCC 85 ii. Prem Lala Nahata & Anr. Vs. Chandi Prasad Sikaria reported in (2007)2 SCC 551 iii. Mahalaxmi Cooperative Housing Society Ltd. & Ors. Vs. Ashabhai Atmaram Patel & Ors. reported in (2013)4 SCC 404 9. Heard learned counsel for the petitioners and perused the material available on record. 10. Jaypee Rewa Cement reported in (2004)3 SCC 85 ii. Prem Lala Nahata & Anr. Vs. Chandi Prasad Sikaria reported in (2007)2 SCC 551 iii. Mahalaxmi Cooperative Housing Society Ltd. & Ors. Vs. Ashabhai Atmaram Patel & Ors. reported in (2013)4 SCC 404 9. Heard learned counsel for the petitioners and perused the material available on record. 10. The finding recorded by the learned trial court in order dated 30.9.2024 passed in the application under Section 151 CPC filed in C.O. Case No. 53/2013 is reproduced hereinbelow: ^^cgl izkFkZuki= lquh xbZA i=koyh dk voyksdu fd;k x;kA gLrxr okn esa bankSj uedhu Hk.Mkj ds uke ls py jgs O;olk; dh vk; ls dz;'kqnk o ifjf'k"V&v esa of.kZr dqy 6 vkoklh;@d`f"k lEifRr;ksa ds foHkktu gsrq oknh izrkiflag us izfroknhx.k ds fo:) fnukad 28-5-2003 dks okn izLrqr fd;k gS tcfd izfroknh la- 3 ls 5 }kjk gky gh esa fnukad 29-9-2023 dks oknh rFkk izfroknh la- 1 o 2 ds fo:) okn la-206@2023 esa blh bankSj uedhu Hk.Mkj dh vk; ls dz; vU; 7&8 lEifRr;ksa dk foHkktu gsrq nkok izLrqr fd;k gSA lHkh lEifRr;ka la;qDr fgUnw ifjokj dh lEifRr;ka crkbZ gSA nksuksa nkoksa ds izfroknhx.k }kjk fookfnr lEifRr;ksa dks foHkktu ;ksX; ugha ekuk gSA gLrxr izdj.k izrkiflag cuke pSuflag izfroknh lk{; esa fu;r gSA bl LVst ij nksuksa i=kofy;ka dalksfyMsV djus ij vuko';d foyEc ds lkFk lkFk lkjh dh lkjh lEifRr;ksa ds nLrkost o xokgku o jsdMZ dks iqu% ryc dj iqu% u;s fljs ls okni= ,oa tokc nkos dks dalksfyMsV djus ls ysdj u;s fook|dksa dh iqu% fojpuk djuh gksxh o iqu% u;s fljs ls fopkj.k djuk iMsxkA nksuksa izdj.kksa esa la;qDr lEifRr ,oa LoftZr lEifRr dks ysdj Hkh xaHkhj fookn gSA bl izdj.k ds oknh vU; eqdnesa esa izfroknh gksus ls dalksfyMsV dh dk;Zokgh vR;Ur gh isfpnk ,oa beizsfDVdy gks ldrh gSA izdj.k 10 o"kZ ls vf/kd iqjkuk gksdj lk{; izfroknh ds izdze ij vk pqdh gSA i`Fkd i`Fkd fopkj.k ls de ls de gLrxr okn esa of.kZr lEifRr;ksa dk Rofjr xfr ls fuLrkj.k gksus dh laHkkouk gSA ,slh fLFkfr esa izfroknh la-3 ls 5 }kjk izLrqr izkFkZuki= [kkfjt fd;s tkus ;ksX; gSA tks ,rn~}kjk [kkfjt fd;k tkrk gSA^^ 11. The finding recorded by the learned trial court in order dated 30.9.2024 passed in the application under Section 151 CPC filed in C.O. Case No.206/2023 is reproduced hereinbelow: ^^cgl izkFkZuki= lquh xbZA i=koyh dk voyksdu fd;k x;kA gLrxr okn esa bankSj uedhu Hk.Mkj ds uke ls py jgs O;olk; dh vk; ls dz;'kqnk okn ds iSjk la[;k&8 ls 15 esa of.kZr vkoklh;@d`f"k lEifRr;ksa ds foHkktu gsrq oknhx.k iq’ikdqaoj o vU; us izfroknhx.k ds fo:) fnukad 29-9-2023 dks okn izLrqr fd;k gS tcfd izfroknh la-1 }kjk fnukad 28-5-2003 dks oknhx.k o izfroknh la-1 o 2 ds fo:) okn la-53@2013 esa blh bankSj uedhu Hk.Mkj dh vk; ls dz;'kqnk o ifjf'k"V&v esa of.kZr dqy 6 vkoklh;@d`f"k lEifRr;ksa ds foHkktu gsr nkok izLrqr fd;k gSA lHkh lEifRr;ka la;qDr fgUnw ifjokj dh lEifRr;ka crkbZ gSA nksuksa nkoksa ds izfroknhx.k }kjk fookfnr lEifRr;ksa dks foHkktu ;ksX; ugha ekuk gSA gLrxr izdj.k iq"ikdqaoj o vU; cuke izrkiflag o vU; esa vHkh rd tokc nkok Hkh is'k ugha gqvk gS i=koyh izfroknhx.k dh vksj ls izLrqr fofHkUu izkFkZuki= dh cgl esa fu;r gSA bl LVst ij nksuksa i=kofy;ka dalksfyMsV djus ij vuko';d foyEc ds lkFk lkFk lkjh dh lkjh lEifRr;ksa ds nLrkost o xokgku o jsdMZ dks iqu% ryc dj iqu% u;s fljs ls okni= ,oa tokc nkos dks dalksfyMsV djus ls ysdj u;s fook| dksa dh fojpuk djuh gksxh o u;s fljs ls fopkj.k djuk iMsxkA bl izdj.k ds oknh vU; eqdnesa esa izfroknh gksus ls dalksfyMsV dh dk;Zokgh vR;Ur gh isfpnk ,oa beizsfDVdy gks ldrh gSA nksuksa i{kksa esa la;qDr lEifRr;ka ,oa LoftZr lEifRr;ksa dks ysdj Hkh xaHkhj fookn gSA ,slh fLFkfr esa i`Fkd i`Fkd fopkj.k ls de ls de iwoZ esa izLrqr okn esa of.kZr lEifRr;ksa dk Rofjr xfr ls fuLrkj.k gksus dh laHkkouk gSA vr% oknhx.k }kjk izLrqr izkFkZuki= [kkfjt fd;s tkus ;ksX; gSA tks ,rn~}kjk [kkfjt fd;k tkrk gSA^^ 12. Although there is no specific provision under Code of Civil Procedure, 1908 for consolidation of the suits however the same can be done in exercise of the powers under Section 151 CPC. It is a settled law that the main purpose of consolidation is to save costs, time and efforts and to make the conduct of several legal actions more convenient by treating them as one cause. 13. It is a settled law that the main purpose of consolidation is to save costs, time and efforts and to make the conduct of several legal actions more convenient by treating them as one cause. 13. In the present case, it is evident from perusal of the record that the respondent No.1 on 28.5.2013 filed a suit for partition and permanent injunction (C.O. Case No.53/2013) against the present petitioners and other proforma respondents. The suit instituted by the respondent No.1 had made considerable headway as after framing of the issues, the statements of plaintiffs and defendants have been recorded and only the cross-examination of the defendants is remaining. Whereas petitioners have filed a suit for partition and permanent injunction (C.O. Case No.206/2023) in the year 2023. A temporary injunction has also been sought to the effect that till the permanent injunction is not granted and disputed property is not divided between the parties based on metes and bounds legally, till then the respondent defendants be restrained to further alienate, mortgage, gift, sale etc. the disputed properties i.e. properties mentioned in Para 8 – 15 which belong to late Shri Swaroop Singh. In this civil suit (C.O. Case No.206/2023), written-statement has yet not been filed by the respondents. 14. In the opinion of this Court, learned trial court in the orders impugned while rejecting the application for consolidation of two suits rightly observed that the C.O. Case No.206/2023 has not recorded any progress as yet rather is at the very initial stage. The order of consolidation if passed at this stage, the same would definitely delay the proceedings of C.O. Case No.53/2013 because after filing of the written-statement, issues will have to be framed afresh and trial will have to be conducted from the initial stage. 15. In the opinion of this Court, since both the suits are at different stages and the suit No.206/2023 has been filed after a period of 10 years, the possibility of petitioners filing suit (C.O. Case No.206/2023) with an intent to further delay the proceedings in C.O. Case No.53/2013 cannot be ruled out in the present case. A well reasoned order passed by the learned trial court by exercising the discretion vested with it, which will help the court, does not call for any interference by this Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India. 16. A well reasoned order passed by the learned trial court by exercising the discretion vested with it, which will help the court, does not call for any interference by this Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India. 16. In the result, the writ petitions filed by the petitioners fail and are dismissed as such. 17. Stay petitions also stand dismissed.