Ramavtar Prasad Verma vs Satdeo Lal and Others

Varma, J.—This is an application in revision on behalf of the plaintiff in Title Suit No. 17 of 1938 pending in the Court of the Subordinate Judge at Chapra. There was another suit, Title Suit No. 55 of 1937, which had been filed against the present petitioner along with others by the present opposite party Nos. 1 and 2, and which was pending in the Court of the Munsif, Second Court, at Chapra. The petitioner filed an application before the District Judge of Saran praying for a transfer of the suit pending in the Court of the Munsif to the Court of the Subordinate Judge where the suit filed by him was pending so as to have the two suits tried together inasmuch as he urged that the essential points for determination were the same in the two suits. The learned District Judge, by an order dated 25th April 1938, allowed the transfer as prayed for, and also rejected a rejoinder filed afterwards by the opposite party Nos. 1 and 2 on 26th April 1938. The two suits are now accordingly pending in the same Court of the Subordinate Judge. Thereafter it appears that on 2nd May 1938, the plaintiffs who are the present opposite party Nos. 1 and 2, of Suit No. 55 which has been transferred, filed a petition before the Subordinate Judge u/s 10, Civil P.C., for a stay of proceedings in the subsequent suit (Title Suit No. 17) filed by the present petitioner. The learned Subordinate Judge refused to stay proceedings and directed the parties to proceed with the trial of the former suit No. 55 in which the petitioner was impleaded as a defendant, and while making this order he has overruled the prayer of the petitioner for consolidating or treating the two suits as analogous cases.

The plaintiff-petitioner has come up in revision against that part of the order of the learned Subordinate Judge which rejects the prayer for consolidating the two suits. Mr. Rai Tribhuvan Nath Sahay has raised the question of the jurisdiction of this Court in interfering with an order like the one complained of in this application in revision. Before dealing with the point, I propose to look into the reasons given by the learned Subordinate Judge for refusing to consolidate the suits. He says as follows:

As to the question of consolidating the trial of the two suits, apart from the application or objection of any party in that behalf, the Court had an inherent power to consolidate if it should tend to the convenience of the Court and the parties. I doubt that so far as the main question of jointness or separation between the three branches of the sons of Mahesh Lai is concerned, the evidence in both the suits will be the same. But as the former suit is ripe for hearing while the latter may take some time yet to get ready and while the defendants in the latter suit are some of them different also, I should think that it would be advisable to proceed with the hearing of the former suit that has been received on transfer.

So, of the three considerations given by the learned Subordinate Judge, it appears that the important question of jointness or separation is common to both the suits. As a matter of fact, in the plaint of Title Suit No. 17 allegations made in Title Suit No. 55 have been repeatedly challenged. The next reason given by the learned Judge is that Title Suit No. 17 will take some more time to be ready for trial; but the whole question is whether or not in the long run it will be expeditious and advantageous to all concerned to have the two suits tried as analogous cases. So far as the third consideration given by the learned Subordinate Judge is concerned, I have gone through the plaints of both the suits and examined the respective genealogies given therein by the contesting parties. It is clear that the parties are almost all of them descendants of a common ancestor; and the decision of the two suits rests mainly on the determination of the question as to whether or not there was a partition in the family ad alleged by one or the other of the contesting parties. From the scrutiny, I also find that of the 17 defendants impleaded in Title Suit No. 17, only defendant 17, Babu Uma Nath Prasad, son of Babu Juthan Lal does not appear to have been impleaded in the former Suit No. 55 whilst defendants 4 and 5 were represented by their father Babu Satdeo Lal, one of the plaintiffs of that suit, defendant 7 being the wife of defendant 9 of that suit, and defendant 14 being represented by his-father Babu Pancham Lal who is defendant 2 of that suit. It cannot therefore be said that the parties to the two suits are altogether different; and since the determination of the suits rests mainly on a common question, it must be convenient to have them tried as analogous cases.

Mr. Rai Tribhuvan Nath Sahay while questioning the power of this Court to interfere in revision has said that no prejudice would be caused to the other side if the cases are tried separately, and that if the issues are similar, one of the suits would be postponed u/s 10, Civil P.C. It may be mentioned here that the opposite-party Nos. 1 and 2, for whom Mr. Rai Tribhuvan Nath Sahay appears, did as a. matter of fact apply for a stay of proceedings in Suit No. 17, and the learned Subordinate Judge has refused to grant the prayer holding that the conditions laid down in Section 10 had not been fulfilled. The learned advocate has referred to a number of decisions on the point whether this Court can interfere in its revisional jurisdiction in a case like this, but it is not necessary to refer to them. I respectfully agree with the view taken by James J. in H. Hamid v. M. Abdul Ghani AIR (1933) Pat. 61, where his Lordship set aside the order of the Court below consolidating suits. On a consideration of the facts and circumstances of the case the learned Judge observed as follows:

It would appear that the Subordinate Judge has acted with material irregularity in the exercise of his jurisdiction by ordering consolidation against the will of practically all the parties, in two cases which have so little in common. It would be indeed most improper to force upon the District Board and the Special Officer, in conducting their litigation association with a partner such as Abdul Ghani, with whom they do not desire to be associated; and I do not consider that such an order can be regarded as a proper exercise of the inherent power to consolidate suits.

It is clear that Suit No. 17 is a sequel to the former Suit No. 55 and from a casual reading of the plaints in the two suits it appears that there is sufficient unity or similarity in the matters in issue in the two suits to warrant their consolidation. In my opinion, this is a fit case in which I should, interfere with the order complained of in the revisional jurisdiction of this Court.

I would therefore allow the application with costs; hearing--fee two gold mohurs.