Om Prakash & Ors. vs Subhash Kapoor & Ors Ac+
2013 Latest Caselaw 992 Del

*          THE HIGH COURT OF DELHI AT NEW DELHI

                                          Date of Decision: 28.02.2013

+      CS(OS) 908/1997
       SUBHASH KAPUR                                      ..... Plaintiff
                             Through:   Mr. Arvind Nigam, Sr. Adv.
                                        with Mr. Rajiv K. Nanda, Adv.
                             Versus
       SURAJ PRAKASH KAPOOR AND ORS.                 B+ AC+
                                                          ... Defendant
                             Through:   Ms Prerna Mehta, Adv. for
                                        defendant No. 4, D-7 and D-8
                                        Ms Kusum Sanehi, Adv. for D-5
                                        Mr. Rajat Aneja with Ms Sumati
                                        Jumrani, Adv. for D-6
+      CS(OS) 663/2006, I.A. 4472/2006 and I.A. 10414/2010
       OM PRAKASH & ORS.                                 ..... Plaintiff
                             Through:   Ms Prerna Mehta, Adv.
                             Versus
       SUBHASH KAPOOR & ORS AC+                       ..... Defendant
                             Through:   Mr. Arvind Nigam, Sr. Adv.
                                        with Mr. Rajiv K. Nanda, Adv.
                                        for D-2
                                        Ms Kusum Sanehi, Adv. for D-5
                                        Mr. Rajat Aneja with Ms Sumati
                                        Jumrani, Adv. for D-6
CS(OS) 908/1997 & 663/2006                                  Page 1 of 9
 CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA

M.L. MEHTA, J. (Oral)

1. These two cases have been put up by learned Joint Registrar

before the Court on the objection being raised by the learned counsel

for the plaintiff Subhash Kapoor as regard to the extent of his cross

examination as PW-1 by defendant No. 6 in Suit No. CS(OS)

908/1997.

2. This Suit No. CS(OS) 908/1997 is filed by the plaintiff Subhash

Kapoor against nine defendants who are his brothers and sisters. The

reliefs sought are relating to partition of properties at Kirti Nagar and

Dehradun. The second Suit No. CS(OS) 663/2006 is filed by his

brother Om Prakash and two sisters against him and his other brothers.

Thus, the plaintiffs in this suit are none else but the brothers and sisters

of the defendants. In this suit, the plaintiffs are seeking partition of

property at Nizamuddin East, New Delhi.

3. In the suit filed by Subhash Kapoor [CS(OS) 908/97], the

defence of defendant No. 6 Sham Kapoor was struck off, whereas he

has filed written statement in the second suit [CS(OS) 663/06] that was

filed by Om Prakash and his sisters against him and his other brothers.

Subhash Kapoor was under cross examination and had already been

cross examined by the other defendants in Suit No. CS(OS) 908/1997.

His cross examination by defendant No. 6 Sham Kapoor as regard to

the pleas taken by him in the WS filed in Suit No. CS(OS) 663/2006

was objected to by the learned counsel for the plaintiff contending that

since his defence has been struck off in the Suit No. CS (OS)

908/1997, he could not cross examine PW Subhash Kapoor on the

averments of the written statement in Suit No. CS(OS) 663/2006. The

submission was that the cross examination can only be confined to the

averments set out in the plaint as also on the legal points and not on the

WS of Suit No. CS(OS) 663/2006. It was because of this, that the

matter is placed before the Court by the learned Joint Registrar for

direction.

4. I have heard the learned Senior Counsel for the plaintiff and

learned counsel for the defendant No. 6.

5. It is undisputed that both the suits relate to properties owned by

their late father Jagat Ram Kapoor. The plaintiff Subhash Kapoor, in

Suit No. CS(OS) 908/1997, has filed the suit against all his brothers

and sisters including those who are plaintiffs in Suit No. CS (OS)

663/2006, seeking partition of properties at Kirti Nagar and Dehradun.

In the said suit, the plaintiff has also mentioned about the other

properties of his late father including the Nizamuddin East property

which is the subject matter of Suit No. CS (OS) 663/2006. That suit

was filed much prior in time than the second Suit No. CS (OS)

663/2006 filed by Om Prakash and others. Vide order dated 28th May

2007 both the cases were directed to be tried together. On 19.05.2010

when the separate issues were framed in both the cases, it was ordered

that the evidence in respect of both the suits be recorded in Suit No. CS

(OS) 908/1997 which shall be treated as the lead case and the said

evidence would be read in both the suits. It is pertinent to note that

some of the issues are overlapping in both the cases. So much so, even

four issues are common relating to the different Wills of late Jagat Ram

Kapoor. The onus of proving one of the Wills dated 29th June, 1992, in

both the cases was upon the defendant No. 6 Sham Kapoor.

6. Thereafter, on 3rd July, 2012 an order was passed in Suit No. CS

(OS) 908/1997 that this suit stands consolidated with Suit No. CS (OS)

663/2006.

7. In the backdrop of the above facts, it is to be seen as to whether

the two suits were consolidated as is reflected in the order of 3 rd July

2012 or they were to be tried together and evidence was to be led in

Suit No. 908/1997 and which was to be read in the second case. To my

mind, the orders passed by this Court earlier on 28.05.2007 and

19.05.2010 seems to have escaped the notice of the court when order

was passed on 03.07.2012 ordering consolidation of Suit No. 908/1997

with Suit No. 663/2006. The way the proceedings have been

conducted in both the cases resulting in framing of separate issues and

the evidence to be recorded in suit No. 908/1997 as the lead case, to be

read in the second case since May 2010, does not reflect that the cases

had been consolidated in the sense of the two cases getting merged and

loosing their independent existence/identity for all practical purposes.

Though, this order of consolidation is also not challenged like the

previous orders of 28.05.2007 and 19.05.2010, but having regard to the

nature of reliefs sought by the plaintiffs in their respective suits and the

separate issues having framed, some of which are overlapping and

some common, the intention of the Court and the parties could not be

that of merger of one case with the other for all purposes. This was not

the consolidation in that sense. From the orders of 28th May 2007 and

19.05.2010, it would evidently appear that the Court was conscious of

the averments set up in the two suits as also the reliefs prayed therein.

The orders which were passed could be said to be amounting to

consolidation of suits only for the purpose of trial and not for

consolidation of suits in their entirety. In other words, it can also be

said to be partial consolidation of two suits for the purpose of enabling

the evidence to be recorded in one suit only and the evidence so

recorded to be read in another suit as well. In spite of such

consolidated trial, the suits were to remain separate and distinct from

each-other.

8. The need for passing such order of recording of evidence in one

case was there as various common questions of facts and law were to

arise in both the cases and it was expedient as also convenient and in

the interest of justice to avoid overlapping or conflicting decisions, that

evidence was to be recorded in one case. As is noted above, the basis

of claims set up by the plaintiff in both the cases are the properties

which were undisputedly, owned by their father. Both the plaints have

more or less common facts and are not only confined to the properties

in respect of which they are seeking reliefs, but all other properties of

their deceased father. As also noted above, there are as many as four

common issues and some of the other issues are overlapping. One of

the issues of which the onus was put upon the defendant No. 6, in both

the cases, was in respect of the Will dated 29.06.1992 of his deceased

father and if it was so executed, its effect. A prima facie look at the

Will would make it clear that it was not only confined to the properties

which are the subject matter of the Suit No. 908/97, but of the property

which is also the subject matter of Suit No. 663/2006. All the issues

are inextricably linked and cannot be separated. So much so, the

deposition of PW-1 Subhash Kapoor is not strictly confined to the

averments of his Suit No. 908/1997, but are also in respect of some of

the pleas taken by the defendant No. 6 in his Written Statement filed in

Suit No. CS (OS) 663/2006. In his written statement in this case, the

defendant No. 6 has also raised the preliminary issue as regard to the

maintainability of both the suits on account of partial partition of the

joint properties.

9. In the procedural aspect of the matters the guiding force and

paramount considerations are the ends of justice and preventing abuse

of the process of the Court and not the technicalities of law. As per the

Division Bench of this Court in S.C. Jain Vs. Bindeshwari Devi, 67

(1997) DELHI LAW TIMES 189 when there appear sufficient unity

and similarity in the matters in issue in two suits, the power to

consolidate as a whole or partially could be exercised irrespective of

the non-existence of the identity of all the issues and the reliefs in two

suits or the consent of the parties. The Division Bench while dealing

with the concept of consolidation, also observed that in a case where

both the cases are ordered to be tried together, any party to the second

action who is not even a party in the first will be permitted to take part

in and to attend the trial of the first and cross examine the witnesses.

10. In view of my above discussion, though the defence of

defendant No. 6 was struck off in Suit No. CS (OS) 908/97, having

regard to the fact that some of the issues are overlapping and as many

as four issues are common and the onus was upon this defendant to

prove the Will dated 29.06.1992 of his father and also to demonstrate

its effect, he could not be deprived of to cross examine the plaintiff on

the said Will of his father. Since evidence, which is being recorded in

Suit No. CS (OS) 908/97 is also to be read in Suit No. CS (OS) 663/06

where this defendant no. 6 is also a defendant, he is, as a matter of

right, entitled to cross examine PW-1 as regard to his case in Suit No.

CS (OS) 663/2006 and also on all the aspects relating to the Will of his

father dated 30.05.1992 as also its effects. To make it more clear, the

defendant No. 6 is entitled to cross examine the plaintiff Subhash

Kapoor with regard to his case in Suit No. CS (OS) 663/2006 as also

the Will dated 29.06.1992 of his father. However, if still there arise

any dispute as regard to the questions which may be put in cross

examination of the plaintiff, the learned Joint Registrar will record the

same in question and answer form subject to the objections of the

plaintiff, to be decided at the final arguments stage. With these

observations, the controversy that is presented by the learned Joint

Registrar, is set at rest and the parties are directed to appear before the

Joint Registrar for further cross examination of PW-1 by defendant No.

6 on 11.03.2013 when the Joint Registrar shall schedule for his further

cross examination.

M.L. MEHTA, J.

FEBRUARY 28, 2013/awanish