Shri Anand Pershad Jaiswal vs Smt Shakun Jaiswal & Ors
2014 Latest Caselaw 6100 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                            Order delivered on: 24th November, 2014

+              I.A. No.19443/2014 in CS (OS) No.2064/2009

      SHRI ANAND PERSHAD JAISWAL                 ..... Plaintiff
                   Through Mr.Arvind Nigam, Sr.Adv. with
                           Mr.Akshay Makhija, Mr.Saurabh
                           Seth & Ms.Amisha Gupta, Advs.

                        versus

      SMT SHAKUN JAISWAL & ORS                ..... Defendants
                   Through Mr.A.S.Chandhiok, Sr.Adv. &
                            Mr.Sandeep Sethi, Sr.Adv. with
                            Ms.Malini Sud, Mr.Amit Agrawal &
                            Ms.Aditi Sharma, Advs. for D-1 &
                            5.
      CORAM:
      HON'BLE MR. JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J. (ORAL)

1. The abovementioned application has been filed by the plaintiff seeking certain directions. The case of the plaintiff, inter-alia, is that defendant No.1 in active connivance with defendant No.5, their associates and defendant No.2-Bank, fraudulently and illegally caused the transfer of monies from the bank accounts of Late Sh.L.P.Jaiswal with defendant No.2-Bank to the bank account of defendant No.1, without the free informed consent of Late Sh.L.P.Jaiswal; at a point of time when said Late Sh.L.P.Jaiswal was under confinement of defendants No.1 and 5. The plaintiff being one of the sons and heir of Late Sh.L.P.Jaiswal, on obtaining knowledge of the fraudulent and illegal transfer of funds and causing the

discovery of the underlying documentation, filed the present suit. He is seeking a decree of declaration that the impugned transfer of funds was illegal. Besides, he is also seeking the relief of injunction against defendant No.1 to restore the funds back to the account of Late Sh.L.P.Jaiswal along with the accretions thereto.

2. Admittedly, apart from the above said suit, the estate of Late Sh.L.P.Jaiswal is the subject matter of the other litigations which are pending before this Court, inter-alia, between the parties and others who are the beneficiaries. The details of the same are as under:-

(a) Testamentary Case No.23/2006 titled as Gita Bawa v. State & Ors. where Smt.Gita Bawa has propounded alleged Wills of Late Sh.L.P.Jaiswal in her capacity as an alleged executor whereby Late Sh.L.P.Jaiswal purportedly bequeathed his entire British Virgin Island and Channel Islands Jersey Estate(s) to the defendant No.5 herein. It is the case of the plaintiff herein that the alleged Wills are forged, fabricated and were never executed by Late Sh.L.P.Jaiswal. Even otherwise, Late Sh.L.P.Jaiswal could not have executed the alleged Wills as he lacked testamentary capacity to deal with his estate, and was admittedly under the dominion of defendants No.1 & 5 herein.

(b) Testamentary Case No.22/2006 titled as Karamjit Jaiswal v. State & Ors. whereby the defendant No.5 herein seeks Letters of Administration in respect of the intestate estate of Late Sh.L.P.Jaiswal (apart from the testate estate covered under the alleged Wills dated 10.12.2004, which are the subject matter of Testamentary Case No.23/2006).

(c) CS(OS) No.650/2006 titled as Karamjit Jaiswal v. Anand Pershad Jaiswal & Ors. where the defendant No.5 has sought a declaration that the plaintiff herein is not the son or heir of Late Sh.L.P.Jaiswal.

3. The above said Testamentary proceedings were consolidated for the purposes of trial, vide order dated 2nd April, 2009 by the Division Bench of this Court in FAO(OS) No.450/2007. Pursuant to the above directions of this Court, consolidated trial in the said proceedings is going on and the matter is at the stage of plaintiff's evidence.

4. It is stated in the application that the present case involves common question of facts and the evidence in the present case is to be led by the plaintiff. However, at the same time, it is stated in the application that the plaintiff is not pressing for consolidation of this suit with the testamentary cases. He is only praying that as far as the evidence of the plaintiff is concerned, his evidence be recorded in the testamentary cases and the present case in one go and the same be read as his evidence in both the proceedings.

5. The prayer of this application is opposed by the defendants, mainly, on the reason that the present suit is separate and distinct from the testamentary proceedings and further, the defendants No.1 & 2 in the present case are not parties to the testamentary proceedings. The reliefs in the present suit relate to monies allegedly transferred from the account of Late Sh.L.P.Jaiswal which he maintained with defendant No.2-Bank to defendant No.1. The application has been filed with malafide and oblique motive of delaying the proceedings. The plaintiff cannot be permitted to stall

the testamentary proceedings at the advance stage of trial. The parties are different and there are no commonalities in the two litigations pending before this Court.

6. Mr.Nigam, learned Senior counsel appearing on behalf of the plaintiff submits that no prejudice would be caused to the defendants if the prayer made in the application is allowed. He also submits that the plaintiff is agreeable to produce his evidence separately in each case by way of affidavit(s) and his evidence be recorded simultaneously in all the matters in order to save the time and cost of the parties. His further submission is that the plaintiff has filed the original documents in the present case, the defendants may raise the objection about the non-filing of the original documents in other cases at the time of cross-examination. Thus, in order to avoid confusion and repetition of exhibit numbers which may be differently numbered in case the evidence is not recorded, there would be no harm if his evidence be recorded separately in all the proceedings in one go and the same be read as his evidence in both the proceedings.

7. On the other hand, the submission of the defendants is that there is no provision in the Evidence Act or in CPC to press the said prayer as made in the present application.

8. I have heard the learned counsel for the parties. It is settled law that the main purpose of consolidation is to save the cost, time and effort as well as 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 if the Court feels, appropriate order for consolidation can be passed. Such power is available with the Court.

Though in the present case, the plaintiff is not pressing for consolidation of the present suit with the testamentary cases.

9. Mr.Nigam, learned Senior counsel in support of his arguments, has referred the decision of this Court in the case of S.C.Jain v. Bindeshwari Devi, reported in 67 (1997) Delhi Law Times 189. Relevant para of the said judgment reads as under:-

"20. Three neighbouring concepts, often confused with each other, may be made precise. They are (i) a direction for analogous or simultaneous hearing of the suits; (ii) consolidation of suits in their entirety and (iii) consolidation of suits for the purpose of trial.

20.1. A direction for analogous or simultaneous hearing of the suits requires the court to take up the two suits for hearing on the same date. The identity of the suits remains distinct and independent from each other. It is not merged either wholly or even partially. The hearing takes place separately in each suit though on the same date. Such are the cases where on account of similar or same question of law arising for decision in different suits or the same material witness being required to be examined in different suits, for the sake of convenience the court directs the suits to be taken up for hearing on one day. There may be cases where in spite of the parties and or the subject matter being different, not attracting applicability of Section 10 of the Section 151, CPC, the Court feels that while hearing one suit, it must keep a watch on the progress of or developments in the other suit, and therefore, directs the two suits to come up for hearing on the same day.

20.2 Consolidation of suits in entirety results into merger of the two suits into one, the two suits loosing their independent existence for all practical purposes after the order of consolidation. Take for example a

suit for recovery of rent filed by the same landlord against the same tenant in respect of the same property and the same tenancy but for different periods, say three years each or take a case of two suits attracting applicability of Order 2 Rule 2, CPC but having been filed on the same day. Consolidation of suits may enable a court striking out consolidated issues. The two suits can be disposed of by one common judgment followed by one decree.

20.3 Consolidation of suits for trial merely or partial consolidation enables the evidence in the two suits being recorded in one suit only and the evidence so recorded being read in the other suit as well. In spite of the consolidated trial having taken place the two suits remain separate and distinct from each other. They may be disposed of by one judgment or two judgments on the same evidence but in any case two decrees shall have to be drawn up at the end. Take for example the case of cross suits filed on a cause of action arising out of the same transaction. One suit may be dismissed and the other may be decreed. The two decrees in the two suits will be different. One out of the two parties may appeal against one and may not appeal against the other if the bar of res judicata is not attracted while doing so. Take the case of an owner of limited estate having made several alienations in favour of different persons and the transactions having been challenged by the reversioners in different suits against different purchasers. Some suit may be decreed some may be dismissed though evidence may be common and common questions of law and facts arise. Inspite of consolidation for trial of the suits and disposed of by the Court pronouncing one or more judgments separate decrees shall have to be drawn up."

10. From the overall facts and circumstances of the case, I am of the view that in the interest of justice, equity and fair play, this Court

is inclined to grant the prayer made in the present application in view of the decision of this Court passed in the case of S.C.Jain (supra). In the present case also, the identity of two sets of proceedings are distinct and independent to each other, however, the material witness(es) who is required to be examined in different suits, may be the same. For the sake of convenience, the Court is of the view, the present suit be taken up together with testamentary proceedings when the evidence of the plaintiff is to be recorded, despite of the parties and/or the subject matter being different, as agreed by Mr.Nigam that all the separate evidence by way of affidavit would be produced by the plaintiff. There would be no harm if the evidence of the plaintiff is recorded simultaneously in all the pending matters in order to save the cost, time and efforts. It would also be convenient to the parties as well as to the Court if the evidence of the plaintiff is read together despite of the fact that each matter has to be decided on their own merits separately. The prayer made in the application is accordingly allowed.

11. The application is disposed of.

CS(OS) No.2064/2009 Learned counsel for the plaintiff seeks some more time to file the affidavit as evidence. Without prejudice to the merits of the case, the defendants do not oppose the said request. The affidavit as evidence be filed within six weeks from today.

I.A. No.22729/2014 (u/s 151 and 152 CPC, by D-1) I.A. No.22728/2014 (u/s 151 and 152 CPC, by D-5)

Issue notice. Counsel appearing on behalf of the plaintiff accepts notice. Let the reply be filed within two weeks.

List on 27th January, 2015.

(MANMOHAN SINGH) JUDGE NOVEMBER 24, 2014