Col. Suresh Chand & Another vs Shri Satish Dayal
2010 Latest Caselaw 461 Del

IN THE HIGH COURT OF DELHI AT NEW DELHI

                        Judgment Reserved on: 21.1.2010
                       Judgment Delivered on: 28.1.2010


        I.A.No 11307/2009 in CS(OS) No.2319/2006


COL. SURESH CHAND & ANOTHER
                                            ....Plaintiffs
                            Through:   Mrs.Mala Goel, Advocate.

                       Versus


SHRI SATISH DAYAL                           ....Defendant

                            Through: Mr.Akshay Makhija,
                            Mr.Vikas Badauriya and
                            Mr.Saurabh Seth, Advocates.


CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR


     1. Whether the Reporters of local papers may be
        allowed to see the judgment?

     2. To be referred to the Reporter or not?              Yes

     3. Whether the judgment should be reported in the Digest?
                                                       Yes


INDERMEET KAUR, J.

1. This is an application filed under Section 151 CPC by the

defendant seeking consolidation of the present suits i.e. CS(OS)

No.2319/2006 and CS(OS) No.1963/2006 (which suits stand

consolidated vide order dated 25.04.2007) with the Test Cases

No.55/2006 and Test. Case No.16/2008(which test cases stand

consolidated vide order dated 21.12.2008)

2. CS(OS) No.1963/2006 titled as Satish Dayal Vs. Col. Suresh

Chand & Another has been filed by Satish Dayal seeking partition

from the Col. Suresh Chand and Smt. Usha Kumar of suit properties

i.e. the properties bearing (i) no. 1944-51, Ward No.2, Shanker

Terrace, Chandani Chowk, Delhi-6 as also (ii) property E-34,

Pachsheel Park, New Delhi.

3. The second suit i.e. the CS(OS) No.2319/2006 titled as Col.

Suresh Chand & Another Vs. Satish Dayal is a suit for partition of

the properties of the HUF of the deceased Yogeshwar Dayal, details

of which have been given in Annexure A of the plaint. They are

four properties; besides the first aforementioned property (in sub

clause(i) of para 2 supra)) may also include (i) property no.20,

Sadhna Enclave, New Delhi (ii) property No. 1, Bharti Colony, Delhi,

and (iii) land measuring 325 sq. yards adjacent to 20, Sadhna

Enclave, Delhi.

4. Parties to the said suits are siblings and children of the

deceased Yogeshwar Dayal.

5. The said two suits i.e. CS(OS) No.2319/2006 and CS(OS)

No.1963/2006 were ordered to be clubbed together vide order

dated 25.4.2007 and CS(OS) No.2319/2006 being the more

comprehensive suit, it was held that the evidence recorded in this

suit will be read as evidence in the connected suit as well i.e.

CS(OS) No.1963/2006.

6. Test Cases No.55/2006 is based on the registered will dated

22.06.2005 and codicil dated 07.01.2006 of the deceased

Yogeshwar Dayal. Test. Case No.16/2008 is based on an

unregistered will dated 5.3.2006 of the deceased. Both the two said

two test cases stand consolidated vide order dated 21.20.2008

wherein it was held that the Test.Case No.16/2008 will be treated

as the leading case for the purpose of recording evidence.

7. It is pointed out by learned counsel for the applicant that the

issues framed in the present suit on 18.8.2008 would require

evidence to be led on the issue of the two wills propounded by to

the respective parties i.e. the will forming the subject matter of the

Test.Case No.55/2006 and the will being the subject matter of the

Test.Case No.16/2008. Reference is made of issue no.7 which

reads as follows:-

"What is the share of the parties to the suit in the assets of

the HUF? OPP"

8. It is submitted that this issue cannot be decided unless the

two wills set up by the respective parties of late Yogeshwar Dayal

are decided. It would be an exercise in futility if the evidence which

is required to be led in the Test. Cases is to be repeated and

reiterated in the present case as well; in these circumstances an

order praying for clubbing of the said Test Cases with the said suits

is prayed for.

9. Prayer has been opposed.

10. It is stated that the whole purpose of filing this application is

to delay the probate cases. It is pointed out that in probate cases

the evidence which is to be led is of a minimal nature. It would only

relate to the capacity of the testator to execute prove the will and

if the said will was made in accordance with law. In the pending

suits which are suits for partition and rendition of accounts; in order

to prove the issue as to whether the suit properties were the HUF

properties of the deceased or not mani-fold evidence would be

required and this would delay the probate cases unnecessarily on

which adjudication can come forthwith as the matter has already

reached the stage of evidence. It is stated that affidavit by way of

evidence of the petitioner has already been filed and it is only to be

listed for cross-examination of the witnesses of the petitioner and

who would not be more than two witnesses.

11. This application has been filed under Section 151 of the Code

of Civil Procedure wherein the inherent powers of this Court have

been invoked. The Code of Civil Procedure does not specifically

speak of consolidation of suits but the same can be done under this

provision of law. Powers have to be exercised fairly, to meet ends

of justice and to prevent an abuse of the process of the Court.

Consolidation of suits is to be ordered if it saves the parties from

multiplicity of proceedings, delay and expenses. Complete or

substantial and sufficient similarity of issues arising for decision in

the two suits enables the two suits being consolidated for trial and

decision. Evidence having been recorded, common arguments need

be addressed followed by a common judgment. However, where

the consolidation of suits would result in misjoinder of the cause of

action or where the application has been filed at a late stage or

where it has been filed with an ulterior purpose to delay the

proceedings in the suits sought to be consolidated, the Court in its

discretion would be justified in rejecting such an application.

12. In the instant case, the two suits which have been ordered to

be clubbed together i.e. CS(OS) No.2319/2006 and CS(OS)

No.1963/2006 were counter suits filed between the family members

of the late Yogeshwar Dayal i.e. the two brothers and one sister;

they relate to the properties left by deceased father and it has to be

decided as to whether they form a part of the HUF of the deceased.

In the main suit i.e. suit No. 2139 evidence of the plaintiff is yet to

begin. There are seven issues which have been framed in this case.

The evidence to be led on each of these issues would encompass

the factum as to whether the properties left by the deceased were

HUF properties or not; there are five properties as have been

detailed above; the nature of the evidence sought to be led in

these suits would be different and distinct from the evidence

which is to be led in the Test. Cases. In a Test. Case, the evidence

is limited; scope of a test case being narrowed only as to whether

the testator had left and executed the will in dispute voluntarily;

whether he had the capacity to execute the will. It is pointed out

that apart from the petitioner, only one more witness i.e. the

attesting witness would be required to be examined.

13. In this view of the matter the submission of learned counsel

for the plaintiff that the evidence in the Test. Cases can be

completed in a short span and if the said test cases are directed to

be clubbed with the two suits, the Test Cases would be delayed has

force. Nature of evidence in the said suits being different and the

real controversy in the suits again being distinct i.e. the evidence to

be led in the suits would be much wider as compared to the Test

Cases, this Court does not think it fit to consolidate the Test Cases

with the aforestated suits.

14. Application is dismissed.

                                         (INDERMEET KAUR)
JANUARY 28, 2010                               JUDGE
nandan