Whether suit relating to different portions of same land claiming identical relief should be consolidated?

27. First, we find that the trial of the two cases before the Special Court was not satisfactory inasmuch as when admittedly two LGCs (41/1994 and 50/2004) arising between the same parties and in relation to the same piece of suit land were filed for grant of identical reliefs under the Act then, in our view, both the cases should have been clubbed together for their disposal on merits in accordance with law to avoid any conflicting decision in both the cases.

28. It was more so when both the cases were capable of being clubbed together because both were pending though filed one after the other, neither the parties nor the Courts below took note of this with the result, the same resulted in passing two conflicting orders-one was decreed and the other suffered dismissal. This recourse adopted by the Court below caused prejudice to the parties and, especially, to the party who lost the case.

29. Indeed, in our view, this was an appropriate case where the provisions of Order II Rule 3 of the Code, which deals with joinder of causes of action, could have been resorted to by the Court suo moto for clubbing the two cases as the facts involved in both the cases satisfied the attributes of Order II Rule 3 of the Code.

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 18783-18784 of 2017 (Arising out of SLP (C) Nos. 1401-1402/2015)

Decided On: 15.11.2017

Kazimunnisa (dead) by L.R. Vs. Zakia Sultana (dead) by L.R. and Ors.

Hon'ble Judges/Coram:

R.K. Agrawal and Abhay Manohar Sapre, JJ.

Citation: (2018) 11 SCC 208

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Whether consolidated suit for recovery of possession against tenant and trespasser is maintainable?

Having noticed the judgment which are cited at the Bar by the learned advocates in support of their respective stand, when all the authorities have held that though Civil Judge trying the suit or the Appellate Court hearing the appeal against the decree or order of Civil Judge is one and the same Court but their investment of jurisdiction is totally different e.g. suit against ejectment of tenant has to be filed by the landlord under Section 28 of the Act, while suit against the trespasser based on title has to be filed in the Civil Court having jurisdiction to try the suit i.e. territorial or pecuniary has to be dealt with under the Civil Procedure Code. So also under Section 29 of the Act which provides for appeal to the District Court. Under Section 96 of the Civil Procedure Code also the appeal is preferred to the Appellate Court depending on the pecuniary jurisdiction of that Act. So far as Section 28 is concerned, it does not matter, if the suit is filed by the landlord against the tenant for recovery of possession of demised property including arrears of rent, which may in given case exercised the pecuniary jurisdiction of that Court, still the Civil Judge under Section 28 of the Act has to decide the suit. Then in my judgment, the plaintiff has clubbed two distinct causes of action against two defendants. Thus suit as filed is required to be dismissed. I am of the confirmed view that the suit as filed was not maintainable. Therefore, the trial Court was right in dismissing the suit by recording the finding that the suit was bad for multifariousness and as such the plaintiff is not entitled to the possession of the suit house. In view of this finding, in my judgment, the learned Assistant Judge exceeded his jurisdiction in reversing that finding and directing a decree for possession by ordering eviction of a trespasser to which the Courts i.e. trial Court and Appellate Court as a Special Courts under the Act are not empowered with. Therefore, in my judgment, the contention raised by Shri Nimbalkar, learned advocate requires to be accepted and upheld. Therefore, in my judgment, the learned Assistant Judge, ignoring the aspect that he was hearing an appeal filed under Section 29 of the Act, against the judgment and order passed by the Civil Judge in a suit filed under Section 28 of the Act, has thus assumed the jurisdiction in granting decree in favour of the plaintiff which he does not have. In my opinion, therefore, such exercise of jurisdiction in my judgment, is, an error apparent on the face of record and as such the judgment cannot stand for any reason. In my judgment, the consolidated suit for recovery of possession from the tenant on the ground available under the Act and against a trespasser is not maintainable. In these premises, in my judgment, the learned Assistant Judge has erred in allowing appeal and ordering possession of the property. Accordingly, order passed by the Assistant Judge, Dhule on 8-1-1984 in Appeal No. 231/1982 stands set aside and the judgment and order passed by the learned 3rd Joint Civil Judge (J.D.) Dhule in R. C. S. No. 193/1976 stands restored.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

W.P. Nos. 1239 of 1984(B) and 2889 of 1997(A)

Decided On: 17.08.2005

Decided On: 18.08.2005

Rafiuddin Nuruddin Musalman Vs.  Abduyl Karim Abdul Reheman and Ors.

Hon'ble Judges/Coram:

A.B. Naik, J.

Citation:2005(4) MHLJ646

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