Whether court can suo moto stay subsequent suit as per S 10 of CPC?

 So far as the contention of learned counsel for the

petitioner that the learned Trial Court failed to consider that

under Section 10 of the C.P.C. for stay of suit, the application is

required to be filed in the same suit and in the instant case,

the application was filed in other suit while the trial Court has

directed for stay of petitioner's suit, therefore, the Court below

erred in exercising the powers under Section 10 of the C.P.C, is

concerned, in Munnilal Vs. Sarvajeet AIR 1994 Rajasthan

22, it has been held that the Court can suo motu the stay the

second suit under Section 10 of the C.P.C. So it is clear that to

exercise of power under Section 10 of the C.P.C., an application

is not required.{Para 18}

Law laid down : To exercise of power under Section10 of the C.P.C., an application is not required to be filed.

THE HIGH COURT OF MADHYA PRADESH

Misc. Petition No. : 600 of 2019

 Smt. Pooja Soni  Vs  Dinesh Kumar 

Bench : Hon'ble Shri Justice Rajendra Kumar (Verma)

Dated: 12 /11/2021

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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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When court should order consolidation of suits?

 The two suits ought not to be tried separately. Once the suit at Rewa has reached the Court at Visakhapatnam, the two suits shall be consolidated for the purpose of trial and decision. The Trial Court may frame consolidated issues. The Code of Civil Procedure does not specifically speak of consolidation of suits but the same can be done under the inherent powers of the Court flowing from Section 151 of the CPC. 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. Consolidation of suits is ordered for meeting the ends of justice as it saves the parties from multiplicity of proceedings, delay and expenses. 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. 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. The evidence having been recorded, common arguments need be addressed followed by one common judgment. However, as the suits are two, the Court may, based on the common judgment, draw two different decrees or one common decree to be placed on the record of the two suits. This is how the Trial Court at Visakhapatnam shall proceed consequent upon this order of transfer of suit from Rewa to the Court at Visakhapatnam.

Supreme Court of India

Chitivalasa Jute Mills vs Jaypee Rewa Cement on 4 February, 2004

Equivalent citations: AIR 2004 SC 1687, 2004 (1) AWC 796 SC, SCSuppl 2004 (3) CHN 56, JT 2004 (2) SC 535, (2004) 137 PLR 290, 2004 (2) SCALE 213, (2004) 3 SCC 85, 2004 (2) UJ 789 SC

Bench: R Lahoti, A Bhan

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Whether it is permissible for court to dispose of one suit if it is consolidated?

There is no specific provision in the CPC for consolidation of suits. Such a power has to be exercised only under Section 151 of the CPC. The purpose of consolidation of suits is to save costs, time and effort and to make the conduct of several actions more convenient by treating them as one action. Consolidation of suits is ordered for meeting the ends of justice as it saves the parties from multiplicity of proceedings, delay and expenses and 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. Reference may be made to the judgment of this Court in Prem Lala Nahata and Anr. v. Chandi Prasad Sikaria  (2007) 2 SCC 551.

44. 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.

Reportable

Supreme Court of India

Mahalaxmi Coop.Hous.Soc.Ltd.& ... vs Ashabhai Atmaram Patel(D) ... on 1 March, 2013

Bench: K.S. Radhakrishnan, Dipak Misra

Citation:(2013) 4 SCC 404 

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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

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Whether cross petitions under Hindu marriage Act can be consolidated for trial?

Before proceeding to decide the appeal, we may observe that whenever cross petitions are filed in the family Courts then those petitions should be consolidated as early as possible and both the petitions should be treated and should be heard together. In the Hindu Marriage Act, Section 21A provides for deciding two petitions, if filed by one party under Section 13 for divorce and filed by another party under Section 10 for judicial separation or vice versa then both the petitions are required to be tried and required to be heard together. The same principle is required to be followed when one party to marriage files petition under Section 13 and another files petition under Section 9 of the Hindu Marriage Act because of the simple reason that the two matters cannot be decided separately. Reason for it is that if the Court will proceed to decide two matters separately then the Court is bound to decide the two matters separately and on the basis of evidence available on record of each case and cannot consider the evidence recorded in one case in another case. In that situation, of one party successfully proves his/her case in one petition and failed to adduce evidence in another case then there will be two contradictory decrees. When there are cross petitions, one under Section 9 and another under Section 13, then either of the petition can be allowed and not both the petitions. The two petitions, one under Section 13 and another under Section 9 of the Hindu Marriage Act in fact are inseparable and, therefore, cannot be decided separately. In addition to above, there appears no reason for multiplying the proceedings, as has been done in these cases. Both the parties led evidence in two matters in the same Court for obtaining the decree against each other and the Court could not have passed the decree in favour of both, though the petitions and evidence are separate.

IN THE HIGH COURT OF RAJASTHAN

Decided On: 30.04.2008

Appellants: Prakash
Vs.
Respondent: Smt. Kavita

Hon'ble Judges/Coram:
P.C. Tatia and Bhanwaroo Khan, JJ.

Citation:AIR2008Raj111, RLW2008(4)Raj3209,II(2008)DMC390

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Basic principles for deciding application for consolidation of suit

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.

Bombay High Court

B/13 vs Mrs.. Rupal Sanjeev Dani on 12 November, 2009

Bench: A.M. Khanwilkar

CORAM:- SWATANTER KUMAR,CJ. AND A.M.KHANWILKAR, J 

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Whether relief of stay of subsequent suit and relief of consolidation of two suits are antithesis to each other?

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

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Leading Supreme Court Judgment on consolidation of suit

IN THE SUPREME COURT OF INDIA

Transfer Petition (C) No. 16 of 2002

Decided On: 04.02.2004

Appellants: Chitivalasa Jute Mills
Vs.
Respondent: Jaypee Rewa Cement

Hon'ble Judges/Coram:
R.C. Lahoti and Ashok Bhan, JJ.

 Citation: AIR2004SC1687,(2004)3SCC85,

(1)Code of Civil Procedure, 1908 - Sections 10 and 25--Transfer of suit--Two suits filed in two different courts -- Suit in Visakhapatnam is prior in point of time to suit at Rewa--Parties substantially same--Cause of action alleged in two plaints--Refers to same period and same transactions--Cause of action in one case--Is ground of defence in other case--Possibility of conflicting decrees coming into being--Cannot be ruled out--Merely because plea for stay of proceedings rejected--Supreme Court not denuded of its power to transfer suit if ends of justice call for exercise of such power--Suit from Rewa in M. P. transferred to Visakhapatnam in A. P.

On the facts averred in the two plaints filed by the two parties before two different courts, it is clear that the parties are substantially the same. Jaypee Rewa have alleged and Willard India or Chitivalasa Jute Mills do not deny that Chitivalasa Jute Mills is nothing but a Division of Willard India Limited. The fact remains that the cause of action alleged in the two plaints refers to the same period and the same transactions, i.e., the supply of jute bags between the period of 7.1.1992 and 31.12.1993. What is the cause of action alleged by one party as foundation for the relief prayed for and the decree sought for in one case is the ground of defence in the other case. The issues arising for decision would be substantially common. Almost the same set of oral and documentary evidence would be needed to be adduced for the purpose of determining the issues of facts and law arising for decision in the two suits before two different courts. Thus, there will be duplication of recording of evidence if separate trials are held. The two courts would be writing two judgments. The possibility that the two courts may record finding inconsistent with each other and conflicting decrees may come to be passed cannot be ruled out.

(2)Code of Civil Procedure, 1908--Section 151--Consolidation of suits--Though no specific provision in that behalf in C.P.C.--It can be done under inherent powers of court under Section 151.

The Code of Civil Procedure does not specifically speak of consolidation of suits but the same can be done under the inherent powers of the court flowing from Section 151 of the C.P.C. 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. Consolidation of suits is ordered for meeting the ends of justice as it saves the parties from multiplicity of proceedings, delay and expenses. 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. 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. The evidence having been recorded, common arguments need be addressed followed by one common judgment. However, as the suits are two, the court may, based on the common judgment, draw two different decrees or one common decree to be placed on the record of the two suits.

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Whether Suit can be consolidated under S 151 of CPC?

 The consolidation of suits has not been provided for under any of the provisions of the Code, unless there is a State amendment in this regard. Thus, the same can be done in exercise of the powers under Section 151 CPC, where a common question of fact and law arise therein, and the same must also not be a case of misjoinder of parties. The non-consolidation of two or more suits is likely to lead to a multiplicity of suits being filed, leaving the door open for conflicting decisions on the same issue, which may be common to the two or more suits that are sought to be consolidated. Non- consolidation may, therefore, prejudice a party, or result in the failure of justice.1

Supreme Court of India

Ramji Gupta & Anr. vs Gopi Krishan Agrawal (D) & Ors. on 11 April, 2013

REPORTABLE

Citation: 2014II AD (S.C.) 188, AIR2013SC3099, 2013(4)ALD178, 2013(4) ALJ 466., 2013 (99) ALR 66, 2013(5)ALT12, 2013 3 AWC2782SC, 116(2013)CLT447, 2013(3)CTC98, 2013(2)J.L.J.R.341, JT2013(10)SC443, 2013-3-LW305, 2013(3)PLJR1, 2013(2)RCR(Civil)898, 2013(5)SCALE665, (2013)9SCC438

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Whether suit defective for misjoinder of parties or causes of action can be consolidated?

  It cannot be disputed that the court has power to consolidate suits in appropriate cases. 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 main purpose of consolidation is therefore to save costs, time and effort and to make the conduct of several actions more convenient by treating them as one action. The 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 arise out of the same transaction or series of transactions; or that for some other reason it is desirable to make an order consolidating the suits. (See Halsbury's Laws of England, Volume 37, paragraph 69). If there is power in the court to consolidate different suits on the basis that it should be desirable to make an order consolidating them or on the basis that some common questions of law or fact arise for decision in them, it cannot certainly be postulated that the trying of a suit defective for misjoinder of parties or causes of action is something that is barred by law. The power to consolidate recognised in the court obviously gives rise to the position that mere misjoinder of parties or causes of action is not something that creates an obstruction even at the threshold for the entertaining of the suit.

Supreme Court of India

Prem Lala Nahata & Anr vs Chandi Prasad Sikaria on 2 February, 2007

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