Barindra Kumar Chakraborty vs Ramesh Chandra Dev

R.S. Bindra, J.C.

Ramesh Chandra Dev filed Title Suit No. 1 of 1966 in the court of Additional Subordinate Judge, Tripura, against Barindra Kumar Chakraborty for certain relief respecting immovable property. On 4-4-1967, the latter filed Title Suit No. 9 of 1967 in the same court against Ramesh Chandra Dev for settlement of certain disputes respecting the same property. On 19-5-1967, before the summons was issued in the second suit, Barindra Kumar moved an application in the first suit requesting that the two suits should be consolidated and tried together, Ramesh Chandra opposed that application and the court agreeing with him rejected the same on the short ground that since the second suit had just been instituted, it would not be proper to consolidate it with the earlier one which had reached the stage of recording of evidence. Aggrieved by that order, Barindra Kumar came in revision to this Court on 1-6-1967. The revision petition was admitted and the proceedings in suit No. 1 of 1966 were stayed.

Shri Jogesh Chandra Lodh, appearing for the petitioner, submitted that the instant case is covered by clause (c) of S. 115 of the CPC and that since the trial Court had acted with material irregularity in not consolidating the two suits though they related to the same property and raised identical issues, the revision petition is clearly maintainable and so must be allowed. Shri H.N. Kar, representing the respondent, however, urged vehemently that the case does not fall within the ambit of clause (c), and that at any rate this court should not interfere with the discretion which, as he said, had been properly exercised by the trial court. He brought to my notice the fact that suit No. 1 of 1966 having been stayed by this Court the other suit No. 9 of 1967 has now out-paced it, and on that basis he urged that it would be highly improper to consolidate them at this stage.

I am clearly of the opinion that the facts of case in hand are not covered by clause (c) of Section 115. That clause provides that the High Court may call for the record of any case which has been decided by any court subordinate to it and in which no appeal lies thereto, and if such subordinate court appears to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit. This clause has been interpreted to mean that where the law has prescribed the manner in which a court shall exercise its jurisdiction and the court acts in disregard of those provisions, it acts illegally or irregularly in the exercise of its jurisdiction. In the case of Amir Hassan Khan v. Sheo Baksh Singh, ILR (1885)11 Cal 6 (PC) it was held by the Privy Council that where the court has jurisdiction to decide the question which arose for determination before it and it decides the same, whether rightly or wrongly, it cannot be contended that it had exercised the jurisdiction illegally or with material irregularity. This view was affirmed by the Privy Council in the case of AIR 1949 156 (Privy Council) and also endorsed by the Supreme Court recently in the case of Keshardeo Chamria Vs. Radha Kissen Chamria and Others, . Shri Lodh was unable to point out which provision of the law had been violated by the trial court while deciding the question whether or not the two suits should be consolidated. Therefore, I am not satisfied that the trial court had been guilty of any illegality or material irregularity in exercise of its jurisdiction. All that can be said, at the best, is that the trial court had committed an error in the exercise of its jurisdiction by refusing to consolidate the suit. Such a case, however, does not fall within the purview of clause (c) for the Privy Council observed in the case of Amir Hassan Khan, (1885) ILR 11 Cal 6 (PC) that, "whether they decide it rightly or wrongly, they had jurisdiction to decide the case; and even If they decided wrongly, they did not exercise their jurisdiction illegally or irregularly". Undeniably, the trial court had the jurisdiction to determine the question whether the two suits should be consolidated or not, and since it was decided in favour of one it cannot be urged that any irregularity or illegality in exercise of its jurisdiction had been committed.

Shri Lodh relied on the decision in the case of Ramavtar Prasad Verma Vs. Satdeo Lal and Others, to support the contention that the present revision petition is maintainable. I have examined the authority with the care that it deserves. It appears that the provisions of Section 115 were not examined and the petition was decided on the authority of a previous decision of the same Court H. Hamid and Another Vs. (Maulvi) Abdul Ghani and Another, . The latter authority was not cited before me by Shri Lodh. It was held by the High Court in the case of Ramavtar Prasad that where it appears that there is sufficient unity or similarity in the matter in issue in two suits to warrant their consolidation and yet the trial court has refused to consolidate them, it is a fit case in which the High Court can interfere in its revisional jurisdiction. I regret my inability to subscribe to this view. The first question that would arise for determination in such a case is whether the revision is maintainable. The question whether the court should interfere in the exercise of its revisional power would be considered after it has been found that the revision petition is maintainable. Since the Patna High Court assumed that the revision petition was maintainable, it proceeded only to examine whether a case for interference in revision had been made out or not. Hence, my inability to take that decision as furnishing an authority for the proposition canvassed before me that order dated 19-5-1967 made by the trial court is open to challenge in a revision petition.

As a result, this petition fails and I reject it with costs. Advocate''s fee Rs. 16.