Bharatkumar Chotalal Mehta vs Santram Mandir Trust Through Its Manager, Bharatdas Mahant

Dr. A. P. Thaker, J

The petitioner has filed the present petition under Articles 226 and 227 of the Constitution of India challenging the order dated 28th C/SCA/7262/2019 JUDGMENT January 2019 passed below Exhibit 355 in Rent Suit No.253 of 1984 by the learned Judge, Small Causes Court, Vadodara (hereinafter be referred to as "the Trial Court") whereby the Trial Court has ordered to consolidate all four suits pending between the parties.

Brief facts of the present case are that the respondent herein has filed Rent Suit No.253 of 1984 for recovery of rent and the possession of the suit property. It is alleged that there are four suits pending before the Trial Court being Rent Suit No.253 of 1984, Rent Suit No.35 of 1994, Rent Suit No.143 of 1997 and Regular Civil Suit No.60 of 2013 (Old Rent Suit No.1575 of 1997). The petitioner has submitted the details of suits in para-3.2 of the petition which are as under:-

A. RENT SUIT NO. 253 OF 1984 :

i. Parties Involved in the Suit :

Mahantshri Bharatdasji Gurushri

Santaram Maharajshri. ...Plaintiff

Versus

Legal Heirs of Deceased Dayaben Mehta 1.1 Bharatkumar Chotalal Mehta

Bharatkumar Chotalal Mehta

Dr. Nayankumar Deviprasad Swadiya ...Defendants ii. Date of Filing of the Suit: 29.04.1984 :

iii. Cause of Action:

The suit filed by the Respondent against the present petitioner for recovering the Rent of Rs.15,199/- against the petitioner.

B. RENT SUIT NO. 35 OF 1994 :

i. Parties Involved in the Suit :

Mahantshri Bharatdasji Gurushri

Santaram Maharajshri. ...Plaintiff

Versus

Legal Heirs of Deceased Dayaben Mehta 1.1 Bharatkumar Chotalal Mehta

Bharatkumar Chotalal Mehta ...Defendants ii. Date of Filing of the Suit: 20.01.1994 : iii. Cause of Action:

The Plaint was filed by the Respondent for not changing the Suit Property and not subletting a part of the Suit Property to other person.

C. RENT SUIT NO. 143 OF 1997 :

i. Parties Involved in the Suit :

Mahantshri Bharatdasji Gurushri

Santaram Maharajshri. ...Plaintiff

Versus

Legal Heirs of Deceased Dayaben Mehta 1.1 Bharatkumar Chotalal Mehta 1.2 Hemlataben Chotalal Mehta ...Defendants ii. Date of Filing of the Suit: 19.03.1997 :

iii. Cause of Action:

The Plaint was filed by the Respondent for not carrying out any permanent Construction in the Suit Property.

D. REGULAR CIVIL SUIT NO. 60 OF 2013

(OLD REGULAR CIVIL SUIT NO. 1575 OF 1997):

i. Parties Involved in the Suit :

Mahantshri Bharatdasji Gurushri

Santaram Maharajshri. ...Plaintiff

Versus

Bharatkumar Chotalal Mehta

Hemlata Janardan Vyas. ...Defendants

ii. Date of Filing of the Suit: 04.09.1997 :

iii. Cause of Action:

The Suit is pertaining to the Ownership of the Suit Property. The Following is the list of the Cases pending:

Sr.No

Case No.

Subject Matter

1

Regular Civil Suit No.1789 of 1996

Permanent Injunction of the Suit Property

2.

Probate Application No.261 of

Application of Appeal

3.

Regular Civil Suit No.821 of 1997

Permanent Injunction of the Suit Property

2.1 It is alleged that in Rent Suit No.253 of 1994, the respondent had preferred application below Exhibit 355 for consolidation of all the suits against which the petitioner has objected to consolidate the same. However, the Trial Court has allowed the application of the respondent. It is alleged by the petitioner that the parties in the suit proceedings are different to some extent and the parties will be adversely affected if the suits are consolidated. It is alleged that the cause of action of all the suits are also different and those are pending at the different stage. According to the petitioner, the impugned order of the Trial Court is not legal and valid and the C/SCA/7262/2019 JUDGMENT same is required to be quashed and set aside.

Heard Ms.Dixa Pandya, learned advocate for the petitioner and Mr.Harshadray Dave, learned advocate for the respondent at length. Perused the materials placed on record as well as the decisions cited at the Bar.

Ms.Dixa Pandya, learned advocate for the petitioner has submitted the same facts which are narrated in the memo of petition and has submitted that all four suits are wrongly consolidated by the Trial Court and in all the suits, the prayers are different and parties are also different. She has submitted that the impugned order passed by the Trial Court is not sustainable in the eyes of law. While referring to the impugned order of the Trial Court, she has submitted that the Trial Court has materially erred in consolidating all the suites as the cause of action are different and one suit is of the civil nature. While relying upon the following decisions, Ms.Dixa Pandya, learned advocate has urged to allow the present petition.

Hasmukhbhai Maganlal Darji Vs. Muman Gulambhai Isubbhai and 1, 2013 SCC Online Guj. 3547 for her preposition that the Trial Court ought not to have consolidated the suit.

Abdul Khalid Vs. Rent Tribunal, Jodhpur and Others, 2016 SCC Online Raj. 3557 : (2016) 2 RCR (Rent) 201.

Per contra, Mr.Harshadray Dave, learned advocate for the respondent has vehemently submitted that the suit being Regular C/SCA/7262/2019 JUDGMENT Civil Suit No.60 of 2013 was, originally, registered as Civil Suit No.1575 of 1997 filed before the Civil Court. But, thereafter, the said Court has directed to present before the Small Causes Court and accordingly, the said suit was preferred before the Small Causes Court, Vadodara which shows that the suit was registered in Small Causes Court on 09.05.2013 and renumbered as Regular Civil Suit No.60 of 2013. According to him, in all the suits, the parties are the same and the properties are the same and there is relationship of landlord and tenant between the parties. According to him, the evidence pertaining to each suit are the same and by consolidation of the present suits, no prejudice is to be caused to the otherside. He has also submitted that the recording of evidence is in progress and it is pending for cross-examination of the plaintiff. He has submitted that the Trial has not committed any error of facts and law in consolidating of the suits. He has urged to dismiss the present petition.

In rejoinder, Ms.Dixa Pandya, learned advocate for the petitioner has submitted that the cause of action for all the suits are different and, therefore, all the suits ought not to have consolidated by the Trial Court.

In the case of Hasmukhbhai Maganlal Darji (supra), this Court has held and observed in para-4 as under:-

"4. Having considering the arguments advanced by the learned counsel for the parties as also relevant provisions of law, true it is that the Court under Section 151 of CPC has a jurisdiction to order consolidation of the suits, however, the premise on which the trial court proceeded was not correct. The cardinal principle on which the consolidation of the suits can be ordered is the involvement of more or less identical issues in the suit; meaning thereby that the evidence rendered C/SCA/7262/2019 JUDGMENT in one suit would dispose of the other. The object is to avoid multiplicity of evidence and smoothen the proceedings so that the multiplication of judgments can be avoided. If different persons are to depose on their facts, consolidating the suit will only complicate the matter. Similarity of the facts or the documents cannot be equated with the facts being same or the evidence being same. The two suits may be similar but may not be the same. While in similar suits, consolidation would complicate the things inasmuch as the party may have different causes of action, different reasons to justify their case and different evidence to adduce. If, however, the cases are same as in the land acquisition proceedings, consolidation would be permissible."

In the case of Abdul Khalid (supra), the Rajasthan High Court has observed, regarding the facts of that case in para-26 which has been heavily relied on by Ms.Dixa Pandya, learned advocate for the petitioner, which reads as under:-

"26. As discussed hereinabove, in the instant case, the parties to the two petitions are not the same inasmuch as, one petition has been filed by the petitioner herein and another by the respondent no.5. Of course, one of the property in respect whereof the suit for eviction has been filed by two different persons is common but then, the fact remains that the question with regard to the landlord and tenant relationship is not disputed in the petition filed by the petitioner seeking eviction of the respondents no. 2 to 4 from the rented premises consisting of three rooms and thus, the question of either ownership over the premises or the landlord and tenant relationship in respect thereof is not required to be gone into by the Rent Tribunal. That apart, the question of reasonable and bona fide necessity raised by the petitioner herein in the petition filed by him seeking eviction of respondent no.2 & 4 from the premises consisting of three rooms is apparently different than the reasonable and bona fide requirement of the premises i.e. room no.6 pleaded by the respondent no. 5 herein. Moreover, the respondents no.2 to 4 having accepted the petitioner as the landlord, and therefore, the C/SCA/7262/2019 JUDGMENT question with regard to landlord and tenant relationship shall arise only in the petition filed by the respondent no. 5 if the respondents no.2 & 4 takes the stand in the said petition denying the landlord and tenants relationship. It is also pertinent to note that respondent no.3 is not the party respondent in the petition filed by the respondent no. 5. It is relevant to mention here that an application preferred by the respondent no. 5 for impleading him as party to the proceedings in petition no.419/05 has already been rejected by the Rent Tribunal vide order dated 12.1.07 and the same has attained finality and therefore, the question of permitting him to inter meddle in the petition filed by the petitioner herein indirectly, does not arise. Thus, the Rent Tribunal has erred in permitting the consolidation of two petitions at the instance of the respondent no.2 to 4, who have not even denied the factum of the petitioner being their landlord. In the considered opinion of this court, the respondent - tenants cannot be permitted to enlarge the scope of inquiry in the petition filed against them by their landlord, indirectly, by way of consolidation of two petitions. It is not out of place to mention here that in the petition filed by the petitioner, seeking eviction is pending since 2005 and the matter is posted for the cross examination of the petitioner and thus, obviously, if consolidation as prayed for is permitted at this stage, the proceedings which already stands delayed on account of pendency of this petition, shall be further delayed.

Considering the contentions of learned advocates for the parties and the materials placed on record and the decisions cited at the Bar, it appears that the Trial Court has ordered consolidation of all four suits on the basis that the subject matters of all the suits are same and to save the time of the Court and of the parties and it is proper to consolidate the suits and accordingly, the suits are consolidated and the evidence of all the suits are ordered to put in Rent Suit No.253 of 1984. Now, it is well settled principles of law that the relevant circumstances for consolidating the civil suits may be summarised as follows:

(i) The parties are substantially the 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 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.

It is well settled that the Code of Civil Procedure does not specifically speak for consolidate of the suits, but the same can be done under inherent powers to make, such as, necessary for the end of justice to prevent the abuse of process of Court as it saved parties from multiplicity of the proceedings, delay and expenses.

Now, considering the aforesaid legal settled provisions and on perusal of the record, it transpires that all the suits are pending before the Small Causes Court and the subject matter of all the suits are for the same property and there is relationship of landlord and tenant between the parties. It also reveals that the suit being Rent Suit No.1575 of 1997 was, initially, filed before the Civil Court and, thereafter, it has been registered in the Small Causes Court and given renumbered as Regular Civil Suit No.60 of 2013. Now, considering the fact that in all the suits, the properties are the same and the parties are the same and/or similar, all the suits can be consolidated. The fact that there is different date of cause of action, that fact cannot be the sole criteria of not granting the prayer for C/SCA/7262/2019 JUDGMENT consolidation. It is but nature that the suits are filed as and when cause of action has arisen. Therefore, there may be different date of cause of in each suit. When the suit property is the same and the parties are almost same and the prayer relates to the same property, it is in the interest of justice that the suits are consolidated to save the time of the Court and all concerned.

On perusal of the impugned order, it appears that the Trial Court has not committed any error in ordering consolidation of the suits. Under these circumstances, the impugned order of the Trial Court does not warrant any interference and the same is sustainable in the eyes of law.

In view of the aforesaid foregoing reasons, the present petition is devoid of merits and is liable to be dismissed. Accordingly, it is dismissed. Rule is discharged. No order as to cost.

In view of the order passed in aforementioned petition, the civil application does not survive. Hence, the civil application stands disposed of.