Komal Sharma vs Dinesh Sharma And Ors

By way of the present writ petition, the petitioner has challenged the order dated 06.08.2019, passed by Additional District Judge, Bhadra (hereinafter referred to as the 'trial Court') whereby petitioner's application seeking consolidation of Suit No.04/2017 and 05/2015 was rejected and her right of cross-examination was closed.

Learned counsel for the petitioner argued that the Court below has erred in rejecting petitioner's application dated 06.08.2019, seeking consolidation of two civil suits namely; 04/2017 & 05/2015, which were pending in the same Court.

Inviting attention of the Court towards the facts and pleadings of these cases, learned counsel submitted that Suit No.05/2015 was filed by the petitioner seeking partition of the property, wherein the defendants have come with the defence that the property in question has been gifted to defendant-Dinesh Sharma by his father.

Being aware of the fact that the defendant has relied upon a gift to assert his right over the property, the petitioner-plaintiff filed another suit for declaration and quashment of the gift deed dated 27.04.2012.

Narrating facts of the above suits, learned counsel submits that it was required of the Court to consolidate both the suits and then decide, as decision of the one suit will definitely have bearing on the other suit.

Learned counsel for the respondents supporting the order impugned passed by the trial Court contended that scope, prayer and pleadings in both the suits are different and as such they cannot be consolidated.

Having heard learned counsel for the parties, this Court is of the considered opinion that both the suits are interlaced and dependent upon each other. If the suit for cancellation of gift deed is decreed, then suit for partition will also be decided, as if the property in question was ancestral property and if said suit remains pending at the time of decision of suit for partition, the decree may be in conflict of the decree to be passed in suit for cancellation of gift deed. That apart, most of the oral and ocular evidence are common, hence it would avoid duplicacy and multiplicity of the proceeding resulting in saving of both time and cost, if the suits in question are consolidated.

Hence, it would be in the fitness of things that both the suits are consolidated and decided together so that the multiplicity of proceedings is avoided.

Needless to mention that parties in both the suits are common, being brother and sister.

It is to be noticed that after refusing to consolidate the cases, the trial Court has proceeded to close the petitioner's right of cross-examination.

In view of the facts obtaining in the present case, particularly when the petitioner had filed transfer application under Section 24 of the Code of Civil Procedure to transfer the suit to other presiding officer, the attempt on the part of the petitioner to seek an adjournment cannot be said to be unwarranted or unjustified. It was required of the trial Court to apply pragmatic and objective approach and instead of being influenced by the fact that the petitioner has moved transfer application, it ought not to have eschewed petitioner's right of cross-examination.

A perusal of the order reveals that the trial Court has proceeded in undue haste in eschewing petitioner's right of cross-examination.

The writ petition is, thus, allowed. Impugned order dated 06.08.2019 passed by the trial Court rejecting petitioner's application is quashed and set aside; whereas petitioner's application for consolidation of the suits is allowed. The trial Court is directed to consolidate the suits No.04/2017 and 05/2015 and decide the same in accordance with law.

The petitioner shall be permitted to cross-examine the respondents' witnesses on the next date which is reported to be 31.08.2019. The respondents shall keep all their witnesses ready so as to enable the petitioner to cross-examine them. The petitioner shall pay a cost of Rs.5,000/- (including the cost of Rs.3,000/- already imposed by the trial Court). In case, due to time constraint or otherwise cross-examination of all the witnesses is not complete, the Trial Court will be free to grant one or two adjournments.

The stay application No.12697/2019 is also disposed of.