Marketing Federation Ltd.[(1998)5 SCC 69] while dealing with the purport of section 10 of the Code, the Apex Court observed that it is to prevent the courts of concurrent jurisdiction from simultaneously trying two parallel suits and also to avoid inconsistent findings on the matters in issue.
Significantly, it went on to observe that the provision is in the nature of a rule of procedure and does not affect the jurisdiction of the court to entertain and deal with the latter suit nor does it create any substantive right in the matters. It is not a bar to the passing of interlocutory orders such as "an order of consolidation" of the subsequent suit with earlier suit or appointment of receiver or injunction, attachment before Judgment. Thus understood, once Court were to exercise the discretion of consolidation of the earlier as well as subsequent suit and direct joint trial of both the suits, relief of staying the subsequent suit would be unavailable. In that sense, a relief of stay of subsequent suit and the relief of consolidation of two suits are antithesis to each other. In this view of the matter, the Family Court had rightly rejected the application preferred by the Appellant Exh.5 praying for stay of petition instituted by the Respondent wife for relief of divorce.
Bombay High Court
Sanjeev Indravadan Dani. vs Mrs.. Rupal Sanjeev Dani on 12 November, 2009
CORAM:- SWATANTER KUMAR,CJ. AND A.M.KHANWILKAR, J
2. Counsel for the Respondent waives service. As short question is involved, Appeal was proceeded for final hearing forthwith at admission stage by consent.
3. This Appeal takes exception to the Judgment and order passed by the learned Single Judge of this Court dated 10th November, 2008 in Writ Petition No.6485 of 2008 thereby dismissing the Writ Petition preferred by the Appellant and confirming the order passed by the Family Court, Bandra, Mumbai dated 21st June, 2008 below Exh. 5 and 7 in M.J.Petition No.A-218 of 2007.
4. Briefly stated, the Appellant(husband) instituted a Petition for restitution of conjugal rights, being M.J.Petition No.A-1773 of 2004, in the Family Court of Bombay at Bandra against the Respondent(wife) some time on 2nd November, 2004, on the assertion that they had solemnised their marriage on 27th November, 1988 and that two children were born out of the said wedlock, i.e., one daughter and one son now aged about 17 and 7 years respectively. It is stated that the Appellant, on account of his employment with a multinational firm was posted at Delhi as "Director" of Pharma Division, in March, 2001. The said posting was the result of natural progression in Appellant's career. However, after the Appellant shifted to Delhi, the Respondent was reluctant to stay with him alongwith two children at Delhi for untenable reasons. As a result, differences arose between them and eventually the Respondent left the matrimonial home alongwith two children and refused to join the Appellant at Delhi. It is in this backdrop Petition for restitution of conjugal rights has been instituted by the Appellant. The Respondent filed her written statement in the said proceedings on 27th September, 2005, contesting the claim of the Appellant.
According to the Respondent, it is the Appellant who was responsible for throwing out her from her matrimonial home. As a result of which, she was forced to stay at Mumbai alongwith her two children. It is not necessary to elaborate on the plea taken by both the sides on the merits of the controversy for answering the issue that arises for our consideration in the present proceedings.
5. The Respondent thereafter, filed a Petition before the Family Court of Bombay at Bandra being Petition No.A-218 of 2007 for divorce on the ground of cruelty and desertion. That Petition was filed on 16th January, 2007. The Appellant therefore, filed application(Exh.5) before the Family Court praying for stay of the subsequent Petition filed by the Respondent, by invoking provisions of Section 10 of the CPC. This Application was filed on 26th April, 2007. In the said Application, the Appellant has stated that the Respondent in response to his Petition for restitution of conjugal rights filed written statement belatedly, after the period of 90 days prescribed by law. In the said written statement however, she has merely opposed the grant of relief of restitution of conjugal rights under section 9 of the Hindu Marriage Act. According to the Appellant, in the written statement filed by the Respondent, no plea is taken about the alleged cruelty prior to April, 2002 pertaining to time period for which the Respondent had opportunity to plead the same in the Written Statement.
Those matters have been referred to in the subsequent Petition filed by the Respondent praying for divorce under section 13(IA) and (IB) of the Hindu Marriage Act. According to the Appellant, the subsequent petition filed by the Respondent is obviously a counter blast to the Petition filed by the Appellant for relief of restitution of conjugal rights. It is then stated in the said application (Exh.5) that having regard to the plea taken in both the proceedings and with regard to the reliefs claimed in the said Petitions, in order to avoid conflicting decisions, in the interest of justice, it is appropriate that subsequent Petition filed by the Respondent after more than two years from the date of institution of the Petition by the Appellant, be stayed. The Appellant has also asserted that the parties to both the Petitions are the same. The issues involved in both the Petitions are directly and substantially the same and having regard to Section 10 of the CPC, the subsequent Petition filed by the Respondent should be stayed. The Appellant has further asserted that he is confident that he has a fair chance of getting decree for restitution of conjugal rights, which would allow a period of one year for the parties for re-approachment, which has more weight than the relief claimed by the Respondent as it would facilitate the objectives of the Family Courts Act to sustain the institution of marriage.
Therefore, if the subsequent Petition of the Respondent is not stayed, the parties would miss that golden opportunity. Moreover, entertaining subsequent Petition filed by the Respondent would result in giving opportunity to the Respondent to file further written statement. For all these reasons, it was prayed that the Petition filed by the Respondent herein being M.J.Petition No.A-218 of 2007 should be stayed.
6. The Respondent opposed the said application and also filed application for clubbing of the two Petitions, which application was treated as Exh.7. That application was filed by the Respondent on 29 th September, 2007. In this application, it is stated that in both the Petitions the parties will be leading common evidence. As a result, to save the precious time of the Court, it is essential that both the petitions are clubbed together. The Respondent has further asserted that in the event the Petitions are not clubbed, the Court will have to perform double exercise of conducting two trials of the Petitions seperately where the entire evidence and document will be the common. On this assertion, the Respondent prayed that both the Petitions filed by the Appellant as well as the Respondent respectively being Petition No.A-218/2007 and A-1773/2004 be clubbed and proceeded together.
7. The Family Court disposed of both the Applications preferred by the Appellant as well as the Respondent, Exh.5 and Exh.7 respectively, together by common Judgment and Order dated 19th June, 2008. The Family Court opined that pleadings or defence in respect of the two Petitions are same, though the parties are seeking completely different reliefs. It further held that the Petition for restitution of conjugal rights was pending for almost last four years. Therefore, to avoid further delay and multiplicity of trial, it would be just and proper to decide both the Petitions together even by recording common evidence in both the Petitions. To buttress this opinion, the Family Court has relied on the decision of our High Court reported in II (2007) DMC 734: 2007(3) BCR 85 in the case of Kalpana Patil V/s.
Bharat Patil. Even in that case the husband had filed petition for restitution of conjugal rights and wife had filed petition for dissolution of marriage. The wife filed application for stay of suit filed by the husband, which was rejected on the ground that the parties are same, evidence would be same. Consistent with that view directions to consolidate both the petitions and proceed with the trial of both the cases together were issued.
Accordingly, application filed by the Appellant was rejected and the Application filed by the Respondent wife was allowed with direction that the parties shall try both the petitions together, by leading common evidence.
8. This decision was assailed by the Appellant before this Court by way of Writ Petition under Article 226 and 227 of the Constitution of India, which was registered as Writ Petition No.6485 of 2008. The learned Single Judge of our High Court however, dismissed the said Petition and was pleased to uphold the opinion of the Family Court of consolidation of the two petitions. The learned Single Judge in the first place analysed Section 21A of the Hindu Marriage Act and proceeded to hold that the Family Court has power to transfer the Petitions and direct their joint or consolidated trial of the two petitions. This opinion has been noted on the basis of observations of the Apex Court in the case of Guda Vijaylaxmi v/s. Guda Ramchandra Sekhara Sastry reported in 1981 SC 1143. The learned Single Judge has noted that the Apex Court declined to accept the view expressed by the Nagpur Bench in the case of Priyavari Mehta v/s.
Priyanath Mehta reported in AIR 1980 Bombay 337. The learned Single Judge also found that the decision relied by the Appellant in the case of Dilip V/s. Vandana reported in 1992(2) HLR 357 was distinguishable on facts and had no application to the case on hand. Significantly, this decision has not been produced before us during the hearing of this appeal. Be that as it may, the learned Single Judge has then relied on the decision of our High Court in the case of Kalpana Bharat Patil (supra) and held that opinion in that case would apply on all fours to the case on hand. Learned Single Judge has also adverted to the decision of the Apex Court in the case of Prem Lala Nahata @ Anr. V/s. Chandi Prasad Sikaria reported in (2007) 2 SCC 551 and another decision in the case of State Bank of India v/s. Ranjan Chemicals Ltd. & Anr. reported in (2007) 2 S.C.C. 97 and then proceeded to conclude that the opinion recorded by the Family Court that to obviate further delay and multiplicity of trial, it will be just and proper to decide both the Petitions together, even by recording common evidence in both the Petitions was unexceptionable. Hence, the Petition was dismissed. The above said decision is now challenged by the Appellant by way of present Letters Patent Appeal.
9. According to the Appellant, consolidation of two different Petitions was impermissible as reliefs claimed by the parties were distinct and separate. In one Petition, relief was for restitution of conjugal rights under section 9 of the Hindu Marriage Act, whereas in case of the other Petition, it was for divorce on the ground of cruelty and desertion under Section 13 of the Hindu Marriage Act. Besides, the learned Single Judge has misdirected himself in relying on powers of transfer under section 23 to 25 of the Code of Civil Procedure to sustain the impugned order passed by the Family Court, inasmuch as the power of transfer cannot be equated with the power of consolidation of Petitions and/or joint trial of two different petitions. It is submitted that the Family Court has no jurisdiction to consolidate two distinct Petitions and try jointly when the reliefs claimed in both the Petitions are materially different. It is contended that the legislature has restricted consolidation of two Petitions only in relation to the reliefs of judicial separation and divorce under section 13 of the Hindu Marriage Act. As a result, power under sections 23 to 25 of the Code of Civil Procedure are inapplicable in respect of proceedings under the Hindu Marriage Act. Moreover, recourse cannot be taken to provisions of Sections 23 to 25 as both the Petitions in the present case were pending before the same court for distinct reliefs. The principal grievance of the Appellant is that the Family Court has no jurisdiction to consolidate two petitions which are filed under section 9 and section 13 respectively by the parties. The Appellant has placed reliance on the exposition of the Apex Court in the case of Durgesh Sharma V/s. Jayshree Sharma[2009(1) Mh.L.J. Page 66(SC): 2008(9) SCC 648]. According to the Appellant, since the two Petitions were between the same parties and the plea taken by the parties in both the Petitions was identical; whereas the Respondent was claiming relief of divorce on the ground of cruelty and desertion by way of counter blast to the Petition filed by the Appellant restitution of conjugal rights, it was just and proper to stay the subsequent petition filed by the Respondent wife having regard to the purport of section 10 of the Code of Civil Procedure. Moreso, when the Respondent did not ask for relief of divorce in the written statement which has been filed by her to oppose the Appellant's Petition. The Appellant has also referred to the decision in the case of Jagraj Singh Vs. Birpal Kaur reported in AIR 2007 SC 2083, which takes the view that the Hindu Marriage Act, 1955 is a Special act dealing with the provisions relating to marriage, restitution of conjugal rights, divorce, judicial separation and also nullity of marriage. It is further observed that keeping in mind the provisions of Order XXXIIA, Rule 3 of the Code of Civil Procedure, the Court was obliged to make efforts for settlement of family disputes. As the approach of a Court of law in matrimonial matters ought to be much more constructive, affirmative and productive rather than abstract, theoretical and doctrinaire. The Appellant has also adverted to the decision of the Apex Court in Guda Vijayalakshmi(supra) to contend that the same is distinguishable as in that case issue was for transfer of husband's petition for divorce pending before another Court under Section 25 of the Code of Civil Procedure; whereas in the present case both the petitions were pending before one Family Court.
In other words, the real issue in the present petition is whether the Family Court has power to consolidate the two petitions pending before it.
According to the Appellant, having regard to the scheme of Section 21A of the Hindu Marriage Act, the Family Court could not have taken recourse to inherent powers under section 151 of the Code of Civil Procedure. For that reliance is placed on the dictum of the Apex Court in the case of Durgesh Sharma (supra).
10. On the other hand, the Counsel for the Respondent has in the first place, raised preliminary objection regarding maintainability of the present appeal. On merits, it is contended that no fault can be found with the discretionary order passed by the Family Court, which was necessitated in the fact situation of the present case. According to the Respondent, the Family Court had sufficient power to consolidate trial of two separate Petitions filed by the husband as well as wife for relief of restitution of conjugal rights and divorce as the parties were common as well as defence was common and moreso, to avoid further delay and multiplicity of trial, the order as passed by the Family Court was inevitable.
11. Having considered the rival submissions, the first question that we propose to answer at the outset is in the context of the preliminary objection regarding maintainability of the present appeal. According to the Respondent, although the Appellant has described the Writ Petition as one filed under Article 226 and 227 of the Constitution of India, however, in substance, the same was one under Article 227 of the Constitution of India, against which remedy of present appeal under Letters Patent is not available. According to the Respondent, even the learned Single Judge has proceeded to decide the said Writ Petition as if it were to be under Article 227 of the Constitution. On the other hand, Counsel for the Appellant would contend that not only the Appellant instituted Petition under Article 226 and 227 of the Constitution of India, but having regard to the nature of controversy raised it was clearly ascribable to jurisdiction under Article 226 of the Constitution. Moreover, it was not open for this Court to enquire into as to whether the Petition was one under Article 226 and 227 of the Constitution of India. In support of these submissions, parties have placed reliance on the decision of the Apex Court as well as of our Court. Reliance is placed on the decision in the case of State of M.P. & ors. Vs. Visan Kumar Shiv Charan Lal reported in 2009 All SCR 15. In paragraph-3 of the said decision, the Apex Court has observed that the High Court seems to have gone by the nomenclature description of the writ petition to be one under Article 227 of the Constitution and the High Court did not consider the nature of the controversy and the prayer involved in the Writ Petition.
According to the Appellant, even if the Writ Petition was to be filed under Article 227 of the Constitution, Letters Patent Appeal would be maintainable against the decision in the said Petition having regard to the nature of controversy and prayer involved in the Writ Petition. The Apex Court accordingly, reversed the opinion of the High Court and proceeded to hold that the Letters Patent Appeal was maintainable. In the said decision, besides referring to its earlier decisions in the case of Sushilabai Laxminarayan Mudliyar vs. Nihalchand Waghajibhai Shaha[1993 Supp.(1) SCC 11], Mangalbhai & ors. vs. Radhyshyam (Dr.) [AIR 1993 SC 806], Lokmat Newspapers(P) Ltd. Vs. Shankarprasad[1999(6) SCC 275], Surya Dev Rai vs. Ram Chander Rai & ors.[AIR 2003 SC 3044] and lastly in M/s. M.M.T.C. Ltd. Vs. Commissioner of Commercial Tax & ors.[2008(13) SCALE 682], reference is also made to the decision of the Division Bench of our High Court in the case of Mansaram Sampat Patil since deceased through his Lrs. Smt.Banubai Mansaram Patil & ors. vs. Sambhu Harchand Chaudhary since deceased through his L.Rs.
Smt. Sumanbai w/o Harchand Chaudhary & Ors.[2004(4) Mh.L.J.
1105]. It has also adverted to catena of reported decisions and restated the legal position in paragraph-15 onwards of the said decision. Reference is also made to another decision of the Division Bench of our High Court in the case of Uttam A. Gawali Vs. State of Maharashtra reported in 2006 (3) Bom C.R. Page 915. In paragraph-13 of this decision, the settled legal position with regard to the issue of maintainability of the LPA is restated.
In other words, the legal position about the maintainability of the LPA is no more res integra. In the present case, the Writ Petition as instituted by the Appellant clearly describes the Petition as one under Article 226 and 227 of the Constitution of India. Even in the body of the Petition, in paragraph-21 that position is restated. Besides, even reliefs claimed are one for issuance of writ under Article 226 of the Constitution of India. Moreover, grounds articulated in the Petition, amongst others, challenge the jurisdiction of the Family Court to consolidate trial of two separate petitions between the parties pending in the same court praying for totally different reliefs. In the present case, even if we were to proceed on the basis of the tenor of the Writ Petition, we have no hesitation in holding that the present Letters Patent Appeal is maintainable.
12. We may now turn to the merits of the grievance of the Appellant regarding the power of the Family Court to consolidate trial of two separate petitions pending before it between the same parties under section 9 and section 13 of the Hindu Marriage Act. Indeed, there is no express provision either in the Hindu Marriage Act or for that matter in the Family Courts Act or the Code of Civil Procedure, which authorises the Court to consolidate the trial of two separate Petitions pending before it. Nevertheless, such power can be exercised by the Court by invoking its inherent powers, when it is necessary for the ends of justice or to prevent abuse of the process of the Court. This position is no more res integra. The Apex Court in the case of Chitivalasa Jute Mills v. Jaypee Rewa Cement[(2004) 3 SCC 85:AIR 2004 SC 1687] held that unless specifically prohibited, the civil court has inherent power to make such orders, as may be necessary for the ends of justice or to prevent abuse of the process of the Court. It is observed that consolidation of suits is ordered for meeting the ends of justice as it saves the parties from multiplicity of proceedings, delay and expenses. It is held that complete or even substantial and sufficient similarity of the issues arising for decision in two suits enables the two suits being consolidated for trial and decision. It further went on to observe that in that case, the parties are relieved of the need of adducing the same or similar documentary and oral evidence twice over in the two suits at two different trials; after the evidence having been recorded, common argument need to be addressed followed by one common judgment. Following the dictum of the Apex Court, it is open to the Family Court to direct consolidation of two Petitions while exercising its inherent powers under section 151 of the Code of Civil procedure for meeting the ends of justice. In yet another recent decision in the case of Premlata Nahta (supra), the Apex Court observed that the Court has power to consolidate the suits in appropriate cases. However, the consolidation is a process by which two or more causes or matters are by order of the Court combined or united and treated as one cause or matter. The Apex Court further expounded that the main purpose of consolidation is therefore to save costs, time and effort to make the conduct of several actions more convenient by treating them as one action. It is further observed that jurisdiction to consolidate arises where there are two or more matters or causes pending in the Court and it appears to the Court that some common question of law or fact arises in both or all the suits or that the rights to relief claimed in the suits are in respect of or arises out of same transaction or series of transactions; or that for some other reason it is desirable to make an order of consolidating the suits.
Notably, in the case of SBI V/s. Ranjan Chemicals Ltd. reported in (2007) 1 SCC 97, the argument considered by the Court was that order of joint trial can be passed only if there is consent of both sides. This argument did not find favour with the Apex Court. The Apex Court has held that a joint trial can be ordered when (i) if common question of law or fact arises in both the proceedings or right to relief claimed in them is in respect of or arises out of the same transaction or series of transactions, (ii) where plaintiff in one action is the same person as defendant in another action and if one action can be ordered to stand as counterclaim in the consolidated action and (iii) when the Court finds that ordering of such trial would avoid separate overlapping evidence being taken in two causes put in suit and it would be more convenient to try them together in the interest of parties and for effective trial of the causes. The Court has opined that it is not necessary that all question or issues that arises should be common to both actions. In that, even if some issues and some evidence are common, it would be sufficient for a joint trial, especially when the two actions arise out of the same transaction or series of transactions. The Court unambiguously opined that the power of ordering a joint trial of causes in the court is in exercise of its inherent powers. Keeping in mind the settled legal position deduced from the above said decisions, there is hardly any scope for argument that the Family Court which undoubtedly is also governed by the provisions of Code of Civil Procedure, does not have jurisdiction to pass order of consolidation of two petitions pending before it even if the ends of justice so demand. Indubitably, inherent powers under section 151 of the Code are certainly available to the Family Court, notwithstanding the provisions in the Family Courts Act. There is no provision in the Family Courts Act, which would inhibit the Family Courts from exercising its inherent power available under section 151 of the Court.
13. To get over this position, it was argued that section 21A of the Family Courts Act, which is a special enactment provides for transfer of petition in certain cases. According to the Appellant, as the power of transfer has been defined in the said Act, it necessarily follows that even the inherent powers to consolidate two Petitions between the same persons can be exercised by the Court only in those kind of matters. In other words, neither the provisions of the Hindu Marriage Act nor the Family Courts Act authorises the Family Court to consolidate trial of two petitions between the same parties and that too when it claimed totally different reliefs. This argument cannot be countenanced. For, the provision of Section 21A of Hindu Marriage Act is neither an express bar nor can be considered as an implied prohibition for exercise of inherent power to order consolidation of trial of two separate petitions by the Family Court. Moreover, the fact that section 21A only refers to petition for judicial separation under section 10 or for decree of divorce under section 13, that does not mean that inherent powers of the Family Court under section 151 is impacted in any manner. That power inheres in the Family Court.
14. It will be useful to advert to the dictum of the Apex Court in the case of Guda Vijaylakshmi(supra). In that case, the wife had filed a suit in forma pauperis seeking maintenance from the husband. That suit was filed in the Court of Subordinate Judge, Eluru(Andhra Pradesh). On receipt of the notice of that suit, the husband filed divorce suit against the wife under section 13 of the Hindu Marriage Act in the Court of District Judge, Udaipur(Rajasthan). The wife therefore, moved the Apex Court by way of transfer petition under section 25 of the Code of Civil Procedure to get the husband's suit for divorce to be transferred to the Court of Eluru(A.P.). The argument of the husband in that case was that section 25 of Code of Civil Procedure gets excluded by reason of the provisions of Section 21 and 21A of the Hindu Marriage Act, as is argued in the present case to exclude the inherent power of the Family Court. That argument of the husband did not find favour with the Apex Court. Notably, while examining that contention, the Apex Court has also considered the decision of our High Court in Priyavari Mehta's case(supra), which had taken a view that Section 21-A of the Hindu Marriage Act permits consolidation of only two types of Petitions under the Act. It was further held in that decision that consolidation of other types of petitions under the Act cannot be done by taking recourse to power of transfer under Sections 23 to 25. That opinion has been overturned by the Apex Court in paragraph-5 of the said Judgment.
The Apex Court on the other hand interpreted the purport of section 21A to mean that it cannot be regarded as exhaustive; for the marginal note clearly suggests that the section deals with power to transfer petitions and direct their joint and consolidated trial "in certain cases". It may be apposite to reproduce the dictum of the Apex Court in the same paragraph, which would squarely apply to the case on hand which reads thus:
"Moreover, it will invariably be expedient to have a joint or consolidated hearing or trial by one and the same Court of a husband's petition for restitution of conjugal rights on the ground that the wife has withdrawn from his society without reasonable excuse under Section 9 of the Act and the wife's petition for judicial separation against her husband on ground of cruelty under Section 10 of the Act in order to avoid conflicting decisions being rendered by two different Courts."
(emphasis supplied) Keeping in mind the principle expounded in the abovesaid decision, we do not find any infirmity in the view taken by the Family Court, which proceeded to hold that the pleadings or defence in both the petitions were same though the parties were claiming totally different reliefs. It then proceeded to hold that petition for restitution of conjugal rights was pending for over four years and to avoid further delay and multiplicity of trial, it was just and proper to decide both the petitions together, even by recording common evidence in both the petitions. Obviously, the order eventually passed by the Family Court was founded on the exercise of its inherent powers under section 151 of the Code. The learned Single Judge has rightly affirmed the impugned order of the Family Court. As a matter of fact, the impugned order of the Family Court is a discretionary one having been passed in the fact situation of the present case. Once the argument of the Appellant that the Family Court had no power, is overruled, it necessarily follows that it would not be open for this Court to interfere with the discretionary order passed by the Family Court, unless it was to be demonstrated that the said view was perverse or manifestly wrong. In our opinion, the view taken by the Family Court is not only a possible view but is also in conformity with the dictum of the Apex court in Guda Vijayalakshmi(supra).
15. The next argument of the Appellant is that there is marked difference between the power of transfer and that of consolidation of trial of two different petitions. This argument is in the context of observations made by the learned Single Judge in paragraph-5 of the impugned order. That observation however, will have to be understood in the context, in which it has been made. The learned Single Judge has made that observation with reference to the dictum of the Apex Court in Guda Vijaylaxmi's case(supra), in which the issue was not only one of transfer of petition but also of consolidation of trial of both the petitions. Be that as it may, the contention of the Appellant is of no avail having already concluded that there is ample power with the Family Court to consolidate trial of two separate petitions between the same parties, even if totally different reliefs were claimed by them. If both the parties were to claim relief under section 10 and/or section 13 of the Hindu Marriage Act, obviously that situation will be covered by section 21A of the Hindu Marriage Act. Suffice it to observe that the fact that there is no express provision for consolidation of two separate petitions between the parties pending in the same court for entirely different reliefs such as restitution of conjugal rights, divorce and judicial separation does not mean that the Family Court is not competent to pass such order in exercise of section 151 of the Code. As aforesaid, there is nothing to suggest that that power of the Family Court has been inhibited or diluted by any statutory provision.
16. Reliance was placed by the Counsel for the Appellant on the decision in the case of Durgesh Sharma(Supra). We fail to understand as to how this decision would be relevant to answer the controversy on hand. In that case, short question of law considered by the Apex Court was as to the power, authority and jurisdiction to transfer suits/appeals/other proceedings by a High Court from one Court subordinate to another Court subordinate to another High Court. It is in that context the Apex Court has observed that on plain reading of old section 25 of the Code, its application was very much limited. Keeping in mind the amended section 25 of the Code, theApex Court opined that on the application of a party, the court should pass an appropriate order of transfer. Further, section 25 is a self contained code.
Even in this decision, the Apex Court had occasion to consider the opinion of Single Judge of our High Court in Priyavari Mehta's case(supra), which was pressed into service in support by the Appellant. The Apex Court however, answered the controversy before it in paragraphs-76-77 and rejected the argument that section 23(3) of the Code stood deleted or superceded by the Section 25 of the Code. It was submitted that the parties must be left to choose forum either under section 23(3) or 25 of the Code.
This contention has been rejected. Be that as it may, we fail to understand as to how the exposition in the said decision will be of any avail to the case on hand where the Application preferred by the Respondent wife in the present case was not for transfer of any case but for consolidation of trial of two petitions pending in the same court. As aforesaid, that order could be passed by the Family Court in exercise of its inherent power under section 151 of the Code.
17. That takes us to the another Judgment relied by the Appellant in the case of Rajaprolu Rajyalakshmi V/s. Rajaprolu Ravindranath Sarma[2003 AI HC 4131(AP). In that case, the Andhra Pradesh High Court went on to hold that section 21A can be invoked under the specified circumstances mentioned in that provision in respect of proceedings under section 10 and 13 of the Act. For the reason already recorded, this decision is of no avail to the Appellant. Reliance is also placed on the decision of Priyavari Mehta's case(supra). As observed earlier, said decision has been considered by the Apex Court in the case of Guda Vijayalakshmi(supra) as well as Durgesh Sharma(supra). Accordingly, even this decision will be of no avail to the Appellant.
18. The learned Single Judge has relied on the observations in the case of Kalpana Patil(supra). In that case, the wife challenged the order passed by the lower Court rejecting her application for stay of the proceedings filed by the husband under section 10 of the CPC. This Court in paragraph-6 opined that since the parties to both the proceedings were the same i.e. husband and wife and one petition is filed by wife for divorce on the ground of cruelty whereas another petition was filed by the husband for restitution of conjugal rights on the ground of desertion, therefore, evidence to be led would be almost common in both the proceedings. It then noticed that both the petitions were pending before the same Court. In the circumstances, the High Court was of the view that it would be in the interest of justice that both the proceedings are tried and decided together. In cases where the defence of the wife in the petition for restitution of conjugal rights filed by the husband would invariably be her case in the case of petition filed by her for divorce. Besides, denying the allegations in the petition for divorce filed by the wife, the husband would reiterate his case stated by him in the petition for restitution of conjugal rights. In other words, the defence of both sides would be overlapping and common to a greater extent in the respective petitions. Naturally therefore, evidence to be led by the parties would be common.
In such a situation the Family Court instead of entertaining the request of the husband to stay the subsequent Petition filed by the wife for relief of divorce ought to consider it proper to consolidate trial of both the petitions. That approach would obviously subserve the larger interest of all concerned including to avoid multiplicity of trial, delay and conflict in decision on the same matters. As a consequence, the order as passed in exercise of inherent power of the Court to consolidate trial of two petitions in the fact situation of the present case, is unexceptionable. It has been rightly upheld by the learned Single Judge.
19. We have no hesitation in taking the view that the Family Court has ample powers to order consolidation of trial of two petitions pending before it between the same parties even if the same were claiming entirely different reliefs. Such power can be exercised with reference to the inherent powers under section 151 of the Code. That power is in no way impacted by provisions such as section 21A of the Hindu Marriage Act.
20. For the reasons already recorded, we have no hesitation in upholding the order of the Family Court of passing discretionary order in the ends of justice in favour of the Respondent wife in the fact situation of the present case.
Since we have taken the view that there is inherent power in the Family Court to consolidate the trial of two petitions pending before it between the same parties even though different reliefs are claimed in the concerned petitions, and if that inherent power were to be exercised in a given case, the question of entertaining application for stay of subsequent Petition under section 10 of the Code would not arise. The Apex Court in the case of Pukhraj D. Jain vs. G.Gopalakrishna[(2004) 7 SCC 251 had occasion to observe that mere filing of an application under section 10 CPC does not in any manner put an embargo on the power of the court to examine the merits of the matter. It has observed that the object of the section is to prevent courts of concurrent jurisdiction from simultaneously trying two parallel suits in respect of same matter in issue. That Section enacts merely a rule of procedure and a decree passed in contravention of the said provision is not a nullity. It has further further observed that it is not for a litigant to dictate to the court as to how the proceedings should be conducted, whereas it is for the court to decide what will be the best course to be adopted for expeditious disposal of the case.
21. In the case of Indian Bank Vs. Maharashtra State Coop.
Marketing Federation Ltd.[(1998)5 SCC 69] while dealing with the purport of section 10 of the Code, the Apex Court observed that it is to prevent the courts of concurrent jurisdiction from simultaneously trying two parallel suits and also to avoid inconsistent findings on the matters in issue.
Significantly, it went on to observe that the provision is in the nature of a rule of procedure and does not affect the jurisdiction of the court to entertain and deal with the latter suit nor does it create any substantive right in the matters. It is not a bar to the passing of interlocutory orders such as "an order of consolidation" of the subsequent suit with earlier suit or appointment of receiver or injunction, attachment before Judgment. Thus understood, once Court were to exercise the discretion of consolidation of the earlier as well as subsequent suit and direct joint trial of both the suits, relief of staying the subsequent suit would be unavailable. In that sense, arelief of stay of subsequent suit and the relief of consolidation of two suits are antithesis to each other. In this view of the matter, the Family Court had rightly rejected the application preferred by the Appellant Exh.5 praying for stay of petition instituted by the Respondent wife for relief of divorce.
22. Accordingly, this appeal fails being devoid of merits. Hence, the same is dismissed with costs quantified at Rs.5,000/- to be paid to the Respondent. Ordered accordingly.
CHIEF JUSTICE A.M.KHANWILKAR, J
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