Santosh Kumar, Rajnish Kumar, Ranjeet Kumar and Ajit Kumar vs Raj Kumari @ Smt. Raj Kumari Devi and Others

Heard learned Counsel for the petitioners and learned Counsel for opposite party No. 1. Notices were sent to opposite parties No. 2 to 7, but inspite of valid service of notice, they have not appeared. This civil revision is finally heard at this stage with consent of the parties.

This civil revision has been filed by plaintiffs petitioners challenging order dated 07.02.2008, by which learned 6th Additional District Judge, Patna rejected their petition to start the proceeding of Title Suit No. 04 of 2003 and Title Suit No. 36 of 2003, which were pending before the learned Additional District Judge-VI, Patna, afresh as having been clubbed together they have to be tried together.

Letter of Administration Case No. 98 of 2002 was filed by the petitioners for grant of letter of administration on the basis of a Will dated 22.02.2001 said to have been executed by Narsingh Narain Singh, who had, admittedly, died on 29.03.2001. The said case was contested by opposite party No. 1 widow of late Narsingh Narain Singh claiming that the said Will was forged and fabricated and her deceased husband had never executed any such Will. In the said circumstances due to contest, Letters of Administration Case No. 98 of 2002 was numbered as Title Suit No. 04 of 2003 and was pending before the learned Additional District Judge VI, Patna.

Title Suit No. 36 of 2003 was filed by opposite party No. 1 against opposite parties No. 2 to 7 before learned Subordinate Judge-I, Patna City for declaration of his title over the suit land and alternatively for partition of her share in the said land by metes and bounds and for other ancillary reliefs. In the said suit petitioners, being also impleaded, filed an interlocutory application for stay of further proceeding of the suit (T.S. No. 36/2003) till the disposal of Letters of Administration Case No. 98 of 2002, but the said application was rejected by learned Subordinate Judge-III, Patna City vide order dated 08.05.2004.

The said order was challenged by the petitioner in this Court vide Civil Revision No. 958 of 2004, which was disposed of vide order dated 05.04.2007 (Annexure I) with a direction that Title Suit No. 36 of 2003 pending in the court of the learned Subordinate Judge-III, Patna City, be transferred to the court of the Additional District Judge-VI, Patna and be clubbed with Letter of Administration Case No. 98 of 2002 pending in that court for being tried together.

It transpires that in view of the aforesaid order of this Court, the petitioners filed an application dated 24.01.2008 before the learned Additional District Judge-VI, Patna before whom letter of administration matter bearing Title Suit No. 04 of 2003 was pending stating that since both the said suits have been clubbed together, the entire proceeding must start afresh as both the suits are to be tried together. To the said application, objector-opposite party No. 1 filed a rejoinder dated 05.02.2008 claiming that there was neither any occasion nor any direction of this Court for starting the hearing of Title Suit No. 04 of 2003 afresh. The said application of the petitioner has been rejected by the learned court below vide its order dated 07.02.2008, which is under challenge in the instant civil revision.

Learned Counsel for the petitioners submits that the letters of administration case pending before the learned Additional District Judge was, after contest by the objector, numbered as Title Suit No. 04 of 2003 and was pending before the said Court, whereas, Title Suit No. 36 of 2003 having been filed by opposite party No. 1 before the learned Subordinate judge was transferred by the order of the High Court to the court of Additional District Judge, before whom Title Suit No. 04 of 2003 (L.O.A. Case) was pending.

Learned Counsel for the petitioners further submits that the evidence of the applicant-petitioners in Title Suit No. 04 of 2003 had been closed, whereas, the evidence of the objector was continuing in that suit, whereas, the evidence of the parties was yet to start in Title Suit No. 36 of 2003 Learned Counsel for the petitioners also states that if two suits are clubbed together, it is the duty of the court to frame consolidated issue under the provision of Section 151 of the CPC (hereinafter referred to as ''the Code'' for the sake of brevity) and after recording common evidence and after hearing common arguments, both the suits have to be decided by a common judgment, but, if necessary, separate decree can be prepared. In this connection, he has relied upon a decision of the Hon''ble Apex Court in case of Chitivalasa Jute Mills Vs. Jaypee Rewa Cement,

On the other hand, learned Counsel for opposite party No. 1 submits that the aforesaid decision in case of M/s Chitivalasa Jute Mills (supra) relied upon by learned Counsel for the petitioners was not applicable to the facts and circumstances of this case as in that case, the supply of gunny bags was in question in both the suits, one of which was filed by one of the parties at one place, whereas, the other was filed by the other party at another place and hence issues involved were similar and, therefore, it was ordered to be decided after taking common evidence and hearing common arguments, but that was not the case in the instant suit.

Learned Counsel for opposite party No. 1 further submits that in the instant matter, the issues are completely different in both the suits as in Title Suit No. 04 of 2003 the issue involved is as to whether the Will dated 22.02.2001 was really executed by late Narsingh Narain Singh and the same is genuine and if so the plaintiffs are entitled to the relief for grant of letters of administration as prayed for, whereas, in Title Suit No. 36 of 2003, issues involved therein were as to whether the suit for declaration of right, title and possession of the plaintiffs was in the garb of a partition suit and whether the partition in the family of the plaintiffs and the defendants was effected in the manner claimed by the plaintiffs in the plaint or in the amendment claimed by the defendants in their written statement.

Learned Counsel for opposite party No. 1 avers that that in these circumstances this Court vide order dated 05.04.2007 passed in Civil Revision No. 958 of 2004 had not given any direction to the court below as to how to proceed and hence the learned court below was to proceed under the provision of Clause (2) of Section 24 of the Code of Civil Procedure, in the manner it deemed proper. It is also claimed that since the parties are not common in both the suits and the nature of the proceeding is completely different, the issues are bound to be different. He further claims that in the matter of letters of administration decree is not prepared, whereas, in the matter of partition suit preliminary decree and final decree are prepared and the appeals against them are also different; one u/s 299 of the Indian Succession Act and the other u/s 96 of the Code. Hence the trial court had jurisdiction to exercise its discretion in such matters how to proceed.

From the averments of the parties as well as from the materials on record, it is quite apparent that this Court, vide order dated 05.04.2007 passed in Civil Revision No. 958 of 2004, had directed that Title Suit No. 04 of 2003 (LOA Case No. 98/2002) be transferred from the court of the Subordinate Judge-III. Patna City to the court of Additional District Judge VI, Patna, where both the aforesaid cases shall be clubbed and tried together.

So far Section 24 of the Code is concerned, it deals with general power of transfer, Clause (2) whereof provides that where any suit or proceeding has been transferred, the Court may, subject to any special directions in the case of an order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn. It is quite apparent that the clubbing of two cases for trying them together is one thing, whereas, the transfer of case from one Court to other for analogous hearing is a different thing. It is true that if a case is merely transferred from one court to the other, the court to which the ease has been transferred, has full authority according to the aforesaid provision of the Code to either retry it or to proceed from the point at which it was transferred or made analogous. But here the matter is different as by the order of this Court, L.O.A. Case (Title Suit No. 04/2003) had been clubbed together with Title Suit No. 36 of 2003 as it is not in dispute that the decision of L.O.A. Case (Title Suit No. 04 of 2003) will have direct impact on the decision of Title Suit No. 36 of 2003.

From the said facts it is quite apparent that if Letter of Administration case is allowed the Will in favour of the petitioners would be genuine and proper and opposite party No. 1 who is the plaintiff in Title Suit No. 36 of 2003, will have to prove as to whether her husband was entitled to execute letters of administration in favour of the petitioners or not. But if Letter of Administration case is rejected the task of opposite party No. 1 in Title Suit No. 36 of 2003 would become more easier. Furthermore the evidence led by the petitioners in Letter of Administration case (T. S. No. 04 of 2003) has not been subjected to cross examination by the defendants of Title Suit No. 36 off 2003, although it may be necessary in the changed situation.

So far the decision of the Hon''ble Apex Court in case of M/s Chitivalasa Jute Mill (Supra) is concerned, the facts of that case may not be exactly similar to the facts of this case, but the ratio decided by the Hon''ble Apex Court squarely covers this case. Furthermore when this Court in its wisdom has directed the learned Court below vide its order dated 05.04.2007 (Annexure -I) to club both the suits and try then together, the learned Court below was not legally justified in treating both the two suits merely as analogous case to be decided one after the other on separate issues, evidence and arguments.

The learned count below completely ignored the settled principle of law that even if Section 24 of the CPC does not specifically speak of consolidation of suits but the Courts have sufficient inherent powers flowing from Section 151 of the Code to pass such orders as my be necessary for the ends of justice, preventing conflicting decisions) abuse of the process of the Court, multiplicity of proceedings, unnecessary delay, harassment and expenses, specially where both the suits are inter dependent. Thus the learned court below by passing its impugned order not only violated the aforesaid settled principle of law, but also acted contrary to the specific directions given by this Court vide order dated 05.04.2007 passed in C. R. No. 958 of 2004.

In the said circumstances it was incumbent upon the learned Court below to club the two (suits together, frame fresh consolidated issues for retrying the suits, take fresh consolidated evidence, hear consolidated arguments of all the parties to the two suits and decide both the suits by a common judgment. However, the decree in the two suits may be different.

Accordingly, the impugned order is set aside and this civil revision is allowed with a direction to the learned court below to expedite the proceedings of both the suits clubbed together as per the aforesaid settled principles of law, the earlier specific order of this Court as well as the directions/observations given in the preceding paragraphs of this order.

On the request of learned Counsel for opposite party No. 1, the learned court below is directed to frame consolidated issues within one month from the date of receipt of a copy of this order and to start consolidated hearing of both the suits clubbed together immediately thereafter so that the evidence of the parties is completed expeditiously preferably within six months thereafter.