Sunday, 3 September 2017

When consolidation of suit is not permissible?

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.
17. 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.
Rajasthan High Court - Jodhpur
Ramanand v learned civil judge on 4 January, 2017
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR 
S.B.Civil Writ Petition No. 5168 / 2005 
RAMANAND S/O SHRI RAMDAS AGARWAL
 V
 LEARNED CIVIL JUDGE (S.D.) MERTA (RAJ.)
HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA
Citation:AIR 2017(NOC)668 Raj

1. The judgment was reserved on 16.12.2016 after hearing learned counsel for the parties.
2. 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..
3. 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.
4. 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, (3 of 9) [CW-5168/2005] 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.
5. 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.
6. 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.
(4 of 9) [CW-5168/2005]
7. 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."
8. 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.
9. 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 (5 of 9) [CW-5168/2005] 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.
10. 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.
(6 of 9) [CW-5168/2005] It is only on account of objections of the petitioner that the compromise is not being accepted by the Court.
11. 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.
12. 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.
13. 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 (7 of 9) [CW-5168/2005] 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.
14. 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.
15. 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:-
(8 of 9) [CW-5168/2005]
17. 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.
18. 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.
(9 of 9) [CW-5168/2005]
16. 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.
17. 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.
18. Accordingly, in view of above, the writ petition is devoid of any merit is hereby dismissed. Ordered accordingly. No order as to costs.

(SANJEEV PRAKASH SHARMA)J.
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