Andhra Pradesh High Court - Amravati

Mulampaka Sarada vs Namana Sravanthi on 5 May, 2023

   THE HON'BLE DR. JUSTICE K.MANMADHA RAO

      CIVIIL REVISION PETITION No. 500 OF 2018


ORDER:

This Civil Revision Petition is filed under Article 227 of

Constitution of India, aggrieved by the order in I.A.No.890 of

2017 in O.S.No.152 of 2015, dated 23.10.2017 passed by the

III Additional District Judge, East Godavari at Kakinada.

2. The brief facts of the case are that the petitioner

herein is the 11th defendant and the respondent Nos.1 and 2

herein are the GPA holders to the sole plaintiff viz.,

Naraharisetty Surya Rao and respondent Nos. 3 to 10, 12 and

13 herein are the defendants. The respondent Nos. 1 and 2

filed O.S.No.152 of 2015 for grant of permanent injunction on

the file of III Principal Junior Civil Judge, Amalapuram (for

short "the Court below"). During the pendency of the said

suit, the respondent Nos. 1 and 2 herein filed I.A.890 of 2017

under Section 151 of Code of Civil Procedure to order jointly

in O.S.No.152 of 2015 and O.S.No.236 of 2014 and common

evidence may be recorded in O.S.No.236 of 2014 as schedule

property was one and the same in both the suits. On

considering the oral and documentary evidence, the Court

below allowed the said petition by ordering joint trial of both

the suits. Aggrieved by the same, this Civil Revision Petition

is filed by the petitioner/defendant No.11.

3. Heard Sri P. Rajasekhar, learned counsel for the

petitioner and Sri T.V. Jaggi Reddy, learned counsel for the

respondents.

4. The learned counsel for the petitioner argued that

the Court below ought to have seen that the petitioner alone

is a party in O.S.No.236 of 2014 and the reliefs in both the

suits are different and distinct and also the parties are not

common. He submits that in O.S.No.236 of 2014, there are

other properties other than the suit property in O.S.No.152 of

2015. The learned counsel further submits that the Court

below has failed to see that in view of the controversy and

pleading of the parties involved in both the suits, recording of

common evidence is not convenient and would cause serious

prejudice to the petitioner. Therefore, the learned counsel

requests this Court the impugned order may be set aside. In

support of contentions, learned counsel for the petitioner has

relied on the following judgments:

(i) In a case of Patan Noorun Bi Vs., Pandla

Chinna Pullaiah1 wherein the High Court of A.P., held that:

"In such an event the Court below shall allow the application and call the petitioner to the witness box to make her available for cross-examination either by the petitioner or by the Government. As the earliest suit is of the year of 1995, I direct the Court below to dispose of both the suits within three months".

(ii) In Boddula Rajesham Vs. Mahmooda Begum

and Others2 wherein the High Court of A.P., held that:

"7. ..... Having regard to the fact that the parties to both the suits are common and suit schedule property is also one and the same, I am of the opinion that it would be appropriate to decide both the matters together to avoid not only conflicting decisions but also to avoid multiplicity of proceedings. ..."

5. Per contra, the learned counsel for the

respondent Nos. 1 and 2 submits that respondent Nos. 1

and 2, who are plaintiffs filed suit in O.S.No.134 of 2014

2000 (1) ALT 8

2007 (2) ALT 416.

for grant of permanent injunction. After filing the said

suit, the 3rd parties are claiming that they are original

owners of the property, and filed a suit in O.S.No.236 of

2014 on the file of III Additional District Judge, Kakinada

for declaration of title and possession. Since two suits

relate to the same property, the respondent Nos. 1 and 2

filed Transfer application for transfer of O.S.No.134 of

2014 before the Court below and got transferred to the

Court of III Additional District Judge, Kakinada, which

was re-numbered as O.S.No.152 of 2015. Therefore, it is

highly necessary to conduct joint trial.

6. In support of his contentions, learned counsel

relied upon the following judgments:

(1) In a case of Rama Rajendram Vs. Rama

Venkata Laxmi 3 wherein High Court of A.P., held that:

"(7)..... In the two suits, the parties are the same and the defence is also the same which is that by reason of an earlier arbitration the issues that are now being agitated in the partnership suit as well as in the partition suit had been settled before and

1981 (1) ALT 106

cannot be reopened. The evidence, therefore, would also be the same. It would certainly be more convenient for the parties to go for a joint trial."

(2) In Arka Lakshmi Manohari Vs. Pillamogulla

Ranga Rao4

"25. It is evident from the above decisions that the suits brought in by the plaintiffs based on different and independent transactions cannot be ordered to be consolidated. In the instant case, since the causes of action for filing these present suits are distinct and separate and as the agreements of sale are also different and distinct and the properties covered by the same are also different with distinct boundaries and as the defendants are also different, the learned First Additional District Judge is perfectly justified in dismissing the applications filed by the petitioners herein. In this context, it may be appropriate to refer to the judgments of the Honble Apex Court in M/S.ESTRALLA RUBBER V. DASS ESTATE (PVT.) LIMITED , OUSEPH MATHAI AND OTHERS V. M.ABDUL KHADIR and SURYA DEV RAI v. RAMCHANDER RAI AND OTHERS wherein the Honble Apex Court held that unless the orders impugned are patently perverse and vitiated by fundamental infirmities, the invocation of the jurisdiction of this Court under Article 227 of the Constitution of India is impermissible. In the instant revisions, the said contingency is conspicuously absent."

2015 (4) CurCC 380

7. Admittedly, the schedule property in O.S.152

of 2015 and O.S.No.236 of 2014 are one and the same.

In O.S.No.152 of 2015, the plaintiff filed suit for permanent

injunction against the defendants, for restraining them

from interfering with the peaceful possession and

enjoyment of the plaintiffs. The petitioner herein is the

plaintiff in O.S.236 of 2014, who is the 11th defendant in

O.S.No.152 of 2015 filed suit for declaration of her right,

title and interest in the suit schedule property and direct

the defendants (who are plaintiffs in O.S.No.152 of 2015)

to hand over the possession of the suit schedule property

to the plaintiff within the time fixed by the Court and for

grant of mandatory injunction to remove the constructions

made by the defendants in the suit schedule property and

also for grant of permanent injunction.

8. It is settled principle that a joint trial can be

ordered by the court, if it appears to it that some common

question of law or fact arises in both proceedings or that the

right to relief claimed in them 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 for joint

trial.

9. But, in the present case, admittedly, the

schedule property is one and the same and as per

pleadings in suit No.152 of 2015, the respondent Nos. 1

and 2 herein is the absolute owners of the schedule

properties and they filed the suit for permanent

injunction as the petitioner herein making construction in

the schedule property. The petitioner herein also filed

O.S.No.236 of 2014 for declaration and for grant of

mandatory and permanent injunctions over the same

schedule property, in the capacity of owner of the

schedule property, as she purchased the schedule

property from one Mulakapalli Sriramachandra Murthy,

who purchased the same from one Duba Veerabhadra

Rao.

10. In a case of Arka Lakshmi Manohari Vs.

Pillamogolla Ranga Rao5, wherein the High Court of

Andhra Pradesh held that:

21. In STATE BANK OF INDIA (supra 2), the Honble Apex Court at paragraph 10, held as follows:

10. A joint trial can be ordered by the court if it appears to it that some common question of law or fact arises in both proceedings or that the right to relief claimed in them 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 for joint trial. Where the plaintiff in one action is the same person as the defendant in another action, if one action can be ordered to stand as a counter claim in the consolidated action, a joint trial can be ordered. An order for joint trial is considered to be useful in that, it will save the expenses of two attendance by counsel and witnesses and the trial judge will be enabled to try the two actions at the same time and take common evidence in respect of both the claims. If therefore the claim made by the Company can be tried as a. counter claim by the Debt Recovery Tribunal, the Court can order joint trial on the basis of the above considerations. It does not appear to be necessary that all the questions or issues that arise should be common to both actions before a joint trial can be ordered. It will be sufficient if some of the issues are common and some of the evidence to be let in is also common, especially when the two actions arise out of the same transaction or series of transactions.

Having regard to the facts and circumstances of the

case, it does not appear to be necessary that all the

2015 (3) L.S.92

questions or issues that arise should be common to both

actions before a joint trial can be ordered. Moreover, if

some of the issues are common and some of the

evidence let in is also common, it will be sufficient,

especially when the two actions arise out of the same

transaction or series of transactions. Therefore, to avoid

inconvenience and trouble to all the parties and recording

evidence unnecessarily in two suits same witnesses, the

joint trial has to be ordered. Hence, the trial Court has