RAMANAND S/O SHRI RAMDAS AGARWAL vs LEARNED CIVIL JUDGE (s.D.) MERTA (RAJ.)

The judgment was reserved on 16.12.2016 after

hearing learned counsel for the parties.

By way of this writ petition the counsel for the

petitioner has prayed for consolidation of two suits bearing

in Civil Original Suit No.61/2005 (5/1993) (10/87) titled as

Ramsahay & Anr. Vs. United Commerical Bank & Ors and in

Civil Original Suit No.62/2005 (08/1993) & (33/1987) titled

as Ramsahay Vs. Ramanand & Ors..

It is submitted by the petitioner that an application

was moved for consolidation before the learned trial court

but the same was rejected by passing an order dated

16.07.2005. The present writ petition was field and there

was an interim order passed and since then both the

proceedings in both the suits are pending.

It is stated that the Civil Original Suit No.61/2005

was filed on 25.02.1987 and second Civil Original Suit

No.62/2005 was field on 20.04.1987 by the respondent

No.2 Ramshahay. In both the suits, petitioner was arrayed

as a defendant and he has been contesting the case. It is

further submitted that as the controversy and defence in

both suits are connected and interlinked to each other,

therefore, both the suits ought to be consolidated and joint

trial; be conducted for avoiding contradictory evidence and

judgment. It is submitted that in the first instance, too

that the consolidation be allowed. It is further stated that

learned Court has only denied to connect the case with each

other on the ground that subject of both the suits were

different. It was submitted that in the first suit there is an

application for compromise filed by one of the defendant

and plaintiff while in the second suit, issues are to be

framed. It is submitted that the main controversy and

contest is between the plaintiff Ramsahay and petitioner

Ramanand while during the pendency of the writ petition,

plaintiff Ram Sahay expired. Although, his legal

representatives are already taken on record but no-one has

filed Vakalatnama on their behalf.

It is further submitted that as issued have not been

framed in both the suits, the trial Court has erred in

treating stage of both the suits as different and the reason

for rejecting the application for consolidation is wholly

unjust.

It is further submitted by the petitioner that even

after consolidation of suits, the Court is not powerless to

dispose of any suit independently on the basis of

compromise and such objection for denying consolidation is

wholly unfounded.

To support his arguments, counsel for the petitioner

has placed reliance upon the judgment rendered in

Mahalaxmi Cooperative Housing Society Limited &

Others Vs. Ashabhai Atmaram Patel (Dead) Through

L.Rs & Others reported in (2013) 4 SCC 404 whereof

Para No.46 is quoted as under:-

" 46. "The transfer of the suits from one court to another to be tried together will not take away the right of the parties to invoke Order XXIII Rule 3 and there is also no prohibition under Order XXIII Rule 3 or Section 24 of the CPC to record a compromise in one suit. Suits always retain their independent identity and even after an order of consolidation, the court is not powerless to dispose of any suit independently once the ingredients of Order XXIII, Rule 3 has been satisfied."

It is further submitted that if both the suits are

consolidated and clubbed with each other then it shall

also avoid multiplicity of litigation and ends of justice can

be achieved. It is further submitted that learned Court

below itself found that the controversy will interlinked and

connected and related to each other. The Court has

seriously erred in not exercising the jurisdiction vested in

it and has wrongfully rejected the application.

Counsel for the petitioner has further relied upon

another judgment in the matter of Chitvalasa Jute

Mills Vs. Jaypeee Rewa Cement reported in (2004) 3

SCC 85 wherein it has been held that where the parties were same and nature of suit was also same including the

cause of action and also same set of rule and

documentary evidence would be needed to be adduced

for the purpose of determining the issues, the Court

transferred both the suits at once place and consolidated

the same.

Counsel for the respondent has also filed their

written submissions and would submit that so far as

Ramsahay is concerned, he had filed suit for declaration

against UCO Bank and another with the prayer that the

Fixed Deposits receipts were lying in the Bank, were

plaintiff''s property and the same ought to be refunded to

him in that suit Ramanand was defendant wherein he had

submitted his written statement and averred that the

amount of FD belongs to M/s Sshiv Ram, Kesu Ram and

other legal representatives namely Chuki Devi, Ramnathi

Bai and Ratni Devi. It was specifically mentioned that the

Fixed Deposit receipt is in favour of Mst. Chuki Devi and in

the suit Smt. Chuki Devi was impleaded as party. It was

further stated that Rs.12,000/- was property of M/s Shiv

Ram, Kesu Ram as there was a decree in their favour

against Ram Raj Agarwal during the pendency of the suit

a compromise had been arrived at between Ramsahay,

Sita Ram and Chuki Devi on 20.05.1996 with a prayer

that decree be passed in favour of Ram Sahay who shall

be the owner of the whole amount of the Fixed Deposit.

It is only on account of objections of the petitioner that

the compromise is not being accepted by the Court.

It is further submitted that on the other hand

Suit No.62/2005 namely Ram Sahay Vs. Ramanand for

recovery of Rs.16,430/- on the ground that Mst. Chuki

Devi had taken Ram Sahay in adoption on 10.05.1966. It

was the case of the respondent that the defendant No.1

had recovered Rs.27,200/- from Ram Raj and plaintiff was

having 1/4th share in the said property and, therefore,

an amount of Rs.16,430/- due and liable to be decreed in

the second suit.

It is further submitted that Mst. Chuki Devi and

Ramanand has filed separate written submissions and,

therefore, the second suit was for a different purpose than

the first one and there is no occasion to club both of

them. It is submitted that Ram Sahay had also filed a

compromise with Mst. Chuki Devi along with Ramanand

and the case is only listed for objections relating to the

petitioner No.2 in the first case as had the case been

decided on the basis of compromise, the same cannot be

said to be at the same stage as that of the second suit.

Counsel for the respondent has relied upon a

judgment of this Court in the matter of Ganeshdas &

Anr. Vs. Ramesh Chandra & Ors. Reported in 2002

(3) WLN 608 wherein it has been held that for

consolidation of suit parties must be identical and rights

to be determined must also be identical. In these

circumstances it is prayed that petition may be dismissed

and the impugned order passed by learned trial court

dated 16.07.2005 be upheld.

Having heard both the counsel for the parties, and

after perusing the record as well as after going through

the written submissions, this Court finds itself unable to

accede the request of the petitioner.

It is succinct position of law that precedential

verdicts are to be followed where the facts of the case

are almost identical in nature or the question of law

involved is identical. In the case of Mahalaxmi

Cooperative Housing Society Limited (Supra), the

matter related to cases where the request was made

for transfers of civil suits and here the case is for

consolidation of the suits. The view as expressed by

the Court in the said circumstances was while

examining the provisions under Order 23 Rule 1 and

under Order 23 Rule 3 of the CPC whereas the

present case does not relate to the said provisions.

Similarly, the law as laid down in Chitvalasa Jute

Mills (Supra) was also relating to the transfer of suits

while this Court in case of Ganesh Das (Supra), after

examining the law relating to consolidation of suits

has held as under:-

If the instant cases are examined in the light of the above settled legal proposition, it is evident that parties therein are not the same, documents on the basis of which suits are to be decided are not the same; they have been executed on different dates; it is not the case where there is a possibility of having conflicting judgments into two identical suits; nor it has been shown how the order of not consolidating all the suits has prejudiced the cause of the applicant; plaintiffs evidence has already stood concluded in all the suits;

inconvenience has already been caused to the respective plaintiffs as expenses has already been incurred by them separately; the applicants did not consider it proper to file the applications for consolidation at the initial stage for the reasons best known to them; the applications have been filed at a belated stage only to facilitate him to lead evidence in all the suits simultaneously. Such a course is not permissible. Applicant has no bonafide intention as he failed to show any justification in moving the application in the interest of ail the parties concerned as the application has been filed at a belated stage.

Thus, in the fact-situation I am of the considered opinion that the learned trial court has not committed any manifest error in exercise of its inherent powers requiring any interference by this Court. The learned trial court has already consolidated some of the suits where the parties are identical. Thus, the order impugned does not suffer from any material irregularity. All the seven Revision Petitions stand accordingly dismissed. There shall, however, be no order as to costs.

Taking into consideration the aforesaid,

admittedly, the cause of action and prayer made in both

the suits are totally different. The only similarity is that

the petitioner is a defendant in both the suits while the

Ram Sahay (now deceased) was the plaintiff in both the

suits, however, the other defendants are different. The

prayer is also different. It is only after transferring of

suits the Court has power to pass an order to consolidate

them. However, here, there is no reason to consolidate

the suits as they are different in nature. Moreover,

powers under Section 151 CPC is to be exercised only for

meeting the ends of justice. By way of seeking

consolidation, the petitioner appears to have a different

purpose i.e. not to allow the first suit and it be decided

on the basis of compromise.

Considering the entire facts and circumstances

and the law as cited above, this Court does not find it just

and appropriate to exercise its jurisdiction to call

interference in the order dated 16.07.2005 passed by the

learned Civil Judge (Sr. Dn.) Merta refusing to consolidate

the Civil Original Suit Nos. 61/2005 and 62/2005.

Accordingly, in view of above, the writ petition is

devoid of any merit is hereby dismissed. Ordered

accordingly. No order as to costs.