Bhagwati Prasad Sharma vs Ram Swaroop Sharma (Deceased) ...
2001 Latest Caselaw 1767 Del

JUDGMENT

Mahmood Ali Khan, J.

1. The order of a Civil Judge dated 20.1.2001 has been assailed in this revision petition by the defendant whose application for consolidation of four civil suits which were being litigated between the parties, was dismissed.

2. Following four civil suits are pending inter se parties. Three of them were filed by Ram Saroop Sharma, predecessor-in-interest of the respondent and the fourth was filed by the petitioner. Civil suit No. 269/1990 was filed by the predecessor-in-interest of respondents for recovery of damages for use and occupation of the premises from the petitioner. Evidence in this petition concluded and the case was fixed for final argument in 1995. Thereafter an application for additional evidence was filed by the petitioner which had been allowed and the case is now pending for recording of additional evidence. Suit No. 355/1995 was also filed by the predecessor-in-interest of respondents for recovery of possession of the suit premises from the petitioner. Issues have been framed in this case on 13.10.1999 and now it is at the stage of recording of the evidence of the respondents. Suit No. 69/1999 was again filed by the predecessor-in-interest of respondents for grant of relief of injunction for retraining the petitioner from selling/alienating the suit premises or creating any lien over it. The issues in this case have also been framed on 13.10.1999 and it is also fixed for recording of the evidence of the respondents. Fourth suit bearing No. 795/1993 (now numbered 113/1997) was filed by the petitioner against the predecessor-in-interest of the respondents for declaration and cancellation of the sale deed executed by one Hari Ram, tailor in favor of the predecessor-in-interest of the respondents. It is at initial stages and the service of one of the defendants has not been effected as yet.

3. All the aforesaid four cases are on the file of tone Civil Judge. The petitioner moved an application for their consolidation for the purpose of evidence and decision. In the application filed under Section 151 CPC, the petitioner alleged that the predecessor-in-interest of the respondents in his suits had alleged that he was the owner of the property and the petitioner/defendant, was a trespassers into it. He claimed title of the property by virtue of a sale deed executed by Hari Ram, tailor in his favor. All these suits are in respect of same immovable property and are being litigated between the same parties. Common evidence is required to decide all these cases, therefore, it is appropriate that there should be consolidation of four suits for the purpose of recording evidence a decision.

4. The application was opposed by the respondents on the ground that all the suits are at different stages of the trial and the instant application is filed only to prolong the proceedings. The suit No. 269/1990 is at the stage of final hearing. Suit No. 355/1995 is at the stage of recording of the plaintiff's evidence and the petitioner has moved a frivolous application therein in order to prolong the proceeding. Suit No. 64/1999 is also fixed for arguments on ad interim injunction application. The petitioner's suit is at the stage of service of the defendants and the issues have not been framed. It was prayed that the application should be dismissed.

5. The learned Civil Judge dismissed the application of the petitioner holding that all the four suits were at different stages and consolidation of these suits was not necessary and expedient and also in the interest of justice.

6. Counsel for petitioner has initially argued with the vehemence that common question of law i.e. the title of the disputed property required adjudication in all these four civil suits and the separate decision in those suits will create problem and will also be prejudicial to the trial of the subsequent suits as the judgment in the earlier suit would operate as resjudicata. However, at the fag end of the argument his submission was that at least three suits, two suits filed by the predecessor-in-interest of the respondents which are pending for recording of the evidence of the plaintiffs for the last over two years and one suit, which was filed by the petitioner, may be consolidated for the purpose of recording of evidence and decision. he fairly conceded that the consolidation of the suits cannot be claimed as a matter or right but contended that in the interest of justice and in order to avoid multiplicity of proceeding and recording of same evidence in all the suits the consolidation order is desirable in this case.

7. Conversely the argument of counsel for respondents is that all the four suits are at different stages of trial and one of the suits filed by the predecessor-in-interest of respondents had reached the stage of hearing of final argument as back in 1995 but the petitioner had prolonged it by moving application for additional evidence, which has now been allowed and short additional evidence will be recorded, therefore, this suit cannot be consolidated with suit in which evidence is yet to be recorded. The suit of the petitioner is at very initial stage of service of summons on one of the defendants. He, therefore, opposed the consolidation of the suits.

8. The consolidation of the two or more suits and proceedings for the purpose of recording evidence and their decision by a common order is purely in the discretion of the trial court. However, the discretion has to be exercised judiciously in order to advance the cause of justice, avoid recording of same evidence in different suits separately and also to obviate possibility of conflicting views being taken in the decision on the same question of law and fact in different cases. Consolidation of two and more suits and proceeding is to be done on particulars and facts of the cases. Suits cannot be consolidated merely because the parties are identical or the parties request the court by making statement for recording common evidence in different suits. If the question of law and fact involved and issues framed in two or more suits and proceedings are identical on which same evidence would be adduced by the parties their consolidation for recording evidence in one case for deciding all the consolidated case would be desirable since it will obviate need of not only recording of same evidence again and again but it will also avoid conflicting views and finding being recorded in the cases. The court suo motu or on the request of the parties should consolidate them. But if the suits are at different stages of trial for example, in one case evidence of both the parties of one party has been concluded or substantial evidence of the plaintiff has been recorded, the court would be cautious in consolidating them unless the parties make a request and agree for reading the evidence already recorded as evidence in the other suits in which evidence has not been recorded. Ordinarily if the suits are at the same stages of trial and the issues are also the same the court should consolidate them. There may also be cases where the parties request for reading the entire evidence adduced in one suit by them for deciding both the suits. The cases in which the consolidation order should be made cannot be put in strait jacket. Each case should be considered on its own peculiar facts and merit. There cannot be any hard and fast rules for consolidation of different suits. The discretion has to be exercised by the trial Judge keeping in mind that the consolidation does not lead to complication and delay in the trial. In some cases consolidation may not be possible yet the trial court may still consider the possibility of taking of the suits one date for their trial and disposal one after the other.

9. Now analysing the facts of the present case in the light of the above discussion it is noteworthy that all the suits involve adjudication of the title of the suit property. While Ram Saroop Sharma, predecessor-in-interest of the respondent claimed to have purchased this property from one Hari Ram, tailor and he had asserted his ownership right in all the three suits instituted by him, the petitioner, who is defendant in those suits, has set up defense that he himself was the owner of the property and the sale deed executed by Hari Ram, tailor was a sham and bogus document and did not confer any title on Mr. Sharma. In the suit which the petitioner has filed, he sought a declaration of his ownership right over the suit property and also cancellation of the sale deed executed by Hari Ram, tailor in favor of the predecessor-in-interest of the respondents.

10. Counsel for respondents has filed the copies of the pleadings and the issues framed in the three suits which were field by Mr. Sharma. The first suit No. 269/1990 is for recovery of damages from the respondent for use and occupation. The first issue is whether the plaintiff was the owner of the suit property, the third issue was whether the petitioner was a licensee in the suit property while the fourth issue was whether the petitioner was an absolute owner of the property as claimed in the written statement. The main dispute between the parties, as such, was as to who was the owner of the suit property. The second suit bearing No. 355/1995 was for possession. Second issue is whether the defendant had purchased the land from Mr. Sharma; the fourth issue was whether the sale deed dated 20.9.1990 was null and void. Again the dispute was whether the plaintiff, who claimed title by virtue of the sale deed dated 20.9.1990, was the owner of the property or whether it was the defendant/petitioner who was the owner thereof. yet again suit No. 64/1999, which the predecessor-in-interest of respondents filed, is for grant of permanent injunction restraining the petitioner from selling the suit property. Issue No. 2 was whether the plaintiff had locus standi to file the suit. The plaintiff's predecessor had claimed that he was the owner of the property. It was disputed by the defendant and he has set up his own title in the property. Question of title of the property is to be decided in this suit also.

11. The fourth suit which the petitioner had filed is for cancellation of the sale deed which is the basis of the title of the predecessor-in-interest of the respondents. Since summons has not been served on one of the defendants, therefore, it is at a preliminary stage and issues have not been framed.

12. It is not disputed that in the first suit the evidence of the parties was concluded as far back in 1995 and the case was fixed for hearing of final arguments but an application for additional evidence was moved by the respondent which has been allowed and now the case is for recording of additional evidence. Only a short evidence is now left to be recorded. It is ripe for final decision. While in other three cases evidence has not been recorded though two of them are at the stage of recording of evidence. Consolidation of these suits with the first suit will be improper. It will delay the disposal of the first suit. The counsel for petitioner has rightly at the fag end of his argument has requested that the other three suits may be consolidated leaving the first suit bearing No. 269/1999 separate. As such, suit No. 269/1999 cannot be consolidated with the remaining three suits for the purpose of recording evidence or for passing a common judgment in these cases.

13. Now coming to the question whether other three suits can also be consolidated suffice to mention that of them two suits, which are bearing No. 269/1990 and 355/1995 and which were filed by Mr. Sharma predecessor-in-interest of the respondents, are at the stage of recording of the evidence of the plaintiffs. The evidence of the plaintiffs has not been recorded for the past two years. The main dispute between the parties is about title over the suit property. These two cases are between the same parties. The same evidence will be adduced by the parties on the issues involved, therefore, they can be conveniently consolidated for the purpose of recording common evidence in them and for their disposal by a common judgment.

14. As regards the fourth suit which the petitioner had filed, it is noteworthy that it is at very early stage of trial. The summons has not been served on one of the two defendants. If the pleadings are complete and question of title of suit property arise in this case and it also reaches the stage of recording of evidence before the evidence in the above mentioned two suits started the same may also be considered for consolidation with other two suits for the purpose of recording evidence and decision. However, if the evidence has been recorded in above mentioned two suits or evidence of one party has been recorded or substantial portion of the evidence of a party has been recorded in that suit then it will be open for the parties to request the learned Trial Judge to decide the suit of the plaintiff also on the basis of the same evidence which had already been adduced in the above mentioned two suits. Even otherwise if fourth suit also reaches the stage of recording evidence, it will be open to the trial court to consider the request of the petitioner afresh and take a decision for consolidation of this suit with other two suits in accordance with law. At this stage fourth suit cannot be directed to be consolidated with the other two suits because the stages of trial are totally different. Two suits are pending for recording of the evidence of the plaintiffs for past two years and the consolidation of the fourth suit with them would further delay the trial on those suits. Anyhow it will be for the trial court now to see whether the trial of the fourth suit is also expedited so that if appropriate it is also consolidated with the other two suits for recording common evidence and passing a common judgment in all the three cases.

15. Accordingly the petition is partly allowed. The order of the learned Civil Judge so far as it had dis-allowed consolidation of the suit No. 269/1990 which is at the final hearing and only a small additional evidence is left to be recorded and also the civil suit bearing No. 795/1993 (now numbered 113/1997) which the petitioner had filed and which is at the stage of service of summons, does not suffer from any error of jurisdiction, illegality or material irregularity in the exercise of the jurisdiction by the learned Civil Judge.

16. However, the order of the learned Civil Judge by which he has declined to consolidate the two other suits filed by the predecessor-in-interest of the respondents bearing No. 355/1995 and 64/1999 both of which are at the stage for recording of the evidence of the respondents, suffers from error of jurisdiction, therefore the order is quashed. Both the suits are consolidated for the purpose of recording common evidence and decision by a common order in accordance with law.

17. The petition is accordingly stand disposed of.