Smt Shanthi vs Shri M Ashok Kumar
2022 Latest Caselaw 10783 Kant

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  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 14TH DAY OF JULY, 2022

                      BEFORE

THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

    WRIT PETITION NO. 5765 OF 2022(GM-CPC)

BETWEEN:

SMT SHANTHI
D/O LATE MUNISWAMY
W/O MR K VASU
AGED ABOUT 52 YEARS
R/AT NO.84/A, GROUND FLOOR, 2ND MAIN
3RD CROSS, PRAKASHNAGAR
BENGALURU-560021.

                                       ...PETITIONER

(BY SRI.ASHOK B PATIL, ADVOCATE)

AND:

1. SHRI M ASHOK KUMAR
S/O LATE R MUNISWAMY
AGED ABOUT 47 YEARS
R/AT NO.84/A, 1ST FLOOR, 2ND MAIN
3RD CROSS, PRAKASHNAGAR
BENGALURU-560021.

2. SHRI M KISHOR KUMAR
S/O LATE R MUNISWAMY
(SINCE DECEASED)

3. SHRI M PONNURAMGAM
S/O LATE R MUNISWAMY
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AGED ABOUT 68 YEARS
R/AT NO.32, 1ST MAIN
MANJUNATHA LAYOUT, RAMAMURTHY NAGAR
BENGALURU-560016.

4. SARASWATHI
D/O LATE R MUNISWAMY
W/O SHRI CHINNADURAI @ POONGAVANAM
AGED ABOUT 64 YEARS
R/AT NO.991, 1ST B MAIN
MALAIMAHADESHWARA LAYOUT
9TH BLOCK, NAGARABHAVI 2ND STAGE
BENGALURU-560072.

5. LAKSHMI
W/O SHRI GOPAL
D/O LATE R MUNISWAMY
AGED ABOUT 60 YEARS
R/AT NO.776, 'A' BINNY PET
BENGALURU-560023.

                                      ...RESPONDENTS

(BY SRI.ARCHANA DESAI, ADVOCATE FOR
SRI.SREENIVASAN K, ADVOCATE)

     THIS PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE
THE ORDERS DTD 16.02.2022 VIDE ANNX-L PASSED BY
THE COURT OF 64TH ADDL. CITY CIVIL AND SESSIONS
JUDGE, BENGALURU (CCH-65), DISMISSING IA FOR
CLUBBING IN OS.NO.1402/2017 AND ALLOW THE SAME.

     THIS PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 29.06.2022, COMING ON FOR
PRONOUNCEMENT OF ORDERS THIS DAY, THE COURT
MADE THE FOLLOWING:
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                            ORDER

The captioned writ petition is filed by the plaintiff

in O.S.No.7572/2016 questioning the order of the

learned Judge rejecting the application filed under

Section 151 of CPC seeking to club O.S.No.1402/2017

along with O.S.No.7572/2016.

2. The facts leading to the case are as under:

The petitioner has instituted a suit in

O.S.No.7572/2016 for partition and separate

possession. The petitioner has also questioned the

release deed dated 26.10.2013. The first respondent

has filed an ejectment suit in O.S.No.1402/2017

seeking direction against the petitioner herein to

handover vacant possession.

The petitioner filed a Miscellaneous petition in

Misc.No.73/2021 under Section 24 of CPC seeking

transfer of the ejectment suit filed by the first

respondent. The said suit is transferred to the Court

where the present partition suit is pending

consideration. After transfer, the petitioner has

sought for clubbing of both the suits on the ground

that the subject matter involved in both the suits are

one and the same and therefore, it would be

necessary to record common evidence and decide

both the suits by rendering a common judgment. The

learned Judge while rejecting the application was of

the view that both the suits are based on different

cause of action and the reliefs sought are also

different. The learned Judge while rejecting the

application has also taken note of the fact that the

present petitioner who is arrayed as second petitioner

in ejectment suit has succeeded in protracting the

proceedings for a considerable period of four years on

one pretext or the other. On these set of reasonings,

the learned Judge has rejected the application.

Hence, the present writ petition is by the

petitioner- plaintiff in O.S.No.7572/2016.

3. The learned counsel reiterating the grounds

urged in writ petition would vehemently argue and

contend that the trial Court erred in not clubbing both

the suits having regard to the fact that the parties as

well as the subject matter in both the suits are

common. Placing reliance on the judgment of the

Apex Court rendered in the case of Chitivalasa Jute

Mills .vs. Jaypee Rewa Cement1 he would contend

that same set of evidence is needed for determining

the issues and therefore, to avoid conflicting decrees,

the trial Court ought to have consolidated both the

suits. Referring to the principles laid down by the

Apex Court in the judgment cited supra, he would

contend that the learned Judge has not exercised

discretion judiciously and therefore, would warrant

(2004) 3 SCC 85

interference at the hands of this Court. In support of

his contention, the learned counsel for the petitioner

has also placed reliance on the judgments rendered by

the Apex Court in the case of Nirmala Devi .vs. Arun

Kumar Gupta and others and in the case of Balbir

Singh Wasu .vs. Lakhbir Singh and others3

4. Per contra, learned counsel appearing for

the first respondent-plaintiff in ejectment suit

supporting the order under challenge would contend

that the petitioner under the garb of seeking clubbing

of suits is deliberately protracting the hearing of

ejectment suit. Referring to the order sheet which is

produced on record by the first respondent in both the

suits, she would make an attempt in highlighting the

conduct of the petitioner in both the suits. Taking this

Court through the order sheet of the partition suit, she

would point out that P.W.1 who was examined way

(2005) 12 SCC 505

(2005) 12 SCC 503

back in February 2018 did not offer for cross-

examination and on 21.2.2019 counsel appearing for

the plaintiff filed an application under Section 151 to

discard the evidence of P.W.1 and permit to examine

plaintiff No.1 as P.W.2. She would further point out

that present petitioner who is the first plaintiff in the

partition suit and who is examined as P.W.2 has not

co-operated and this compelled the Court to discard

the evidence of P.W.2 by order dated 2.2.2021.

Evidence of present petitioner was discarded way back

in February 2021, later it was recalled and the matter

is pending for cross-examination of petitioner herein.

On 13.8.2021 the present petitioner has again filed an

application to permit her for further examination-in-

chief. She would also point that in the ejectment suit,

the present petitioner has managed to protract the

proceedings. The present petitioner who is arrayed as

defendant No.2 has failed to lead evidence and

evidence is taken as 'Nil' by order dated 23.1.2021.

Petitioner has refused to lead evidence on the premise

that she has filed an application seeking transfer of

ejectment suit. Referring to all these significant

details, she would contend that the conduct of the

petitioner is found to be grossly unfair. Placing

reliance on the judgment rendered by the Co-ordinate

Bench of this Court in the case of Chetan Dongare

.vs. Kiran Dongare in W.P.No.102325/2015

disposed of on 6.4.2015, she would contend that this

Court was not inclined to accept the prayer for

clubbing on the ground that the suits are entirely

different and the reliefs sought are also not one and

the same. She has placed reliance on the judgment

rendered by the Apex Court in the case of Aspi Jal

and another .vs. Khushroo Rustom Dadyburjor

[Civil Appeal No.2908/2013].

5. Heard the learned counsel for the petitioner

and the learned counsel appearing for the first

respondent.

6. The petitioner has instituted a partition suit

in O.S.No.7572/2016. Petitioner has questioned the

registered release deed dated 26.10.2013. The

petitioner claims that respondent No.1 who has filed

ejectment suit has created a concocted document

styled as release deed dated 26.10.2013. Petitioner

claims that the said document is obtained by

misrepresentation and by playing fraud. The

petitioner claims that the suit schedule property is the

joint family ancestral property and after the death of

her father, she is entitled for her legitimate share in

the suit schedule property. While the present first

respondent has instituted an ejectment suit in

O.S.1402/2017 by specifically contending that the

present petitioner who is arrayed as defendant No.2

was permitted to stay in the suit schedule property as

she requested to allow her to stay for some time. The

first respondent has specifically contended that the

present petitioner has executed a registered release

deed by accepting a sum of Rs.1,00,000/- and

therefore, she has no semblance of right over the suit

schedule property.

7. In the background of these significant

details, the question that requires to be considered is

whether clubbing of both the suits is necessary in the

present case on hand. The disposal of the partition

suit pending in O.S.No.7572/2016 needs considerable

time. There is a registered release deed under which

petitioner appears to have relinquished her share.

The present petitioner has alleged fraud and

misrepresentation. Therefore, the question of

clubbing both the suits having regard to the facts and

circumstances of the case cannot be acceded to.

8. Before I further advert to the case on hand,

it would be useful for this Court to refer to the

judgment rendered by the Apex Court in the case of

Prem Lala Nahata and another .vs. Chandi

Prasad Sikaria4. The Apex Court in the aforesaid

judgment has clearly held that the Court has power to

consolidate the suits in appropriate cases. If the

dictum laid down by the Apex Court is examined, this

Court would find that the main purpose of

consolidation is intended to save cost, time and

efforts. Therefore, only when the situation warrants

and some common question of law and facts arises in

two suits, the Court can exercise judicial discretion

and may order for consolidation of two suits.

9. The first respondent has filed an ejectment

suit. The present petitioner herein has challenged the

release deed dated 26.10.2013 by filing a partition

(2007) 2 SCC 551

suit in O.S.No.7572/2016. Now, if the order sheet is

examined, it is quite clear that petitioner is not at all

diligently prosecuting the partition suit. Plaintiff No.2

was initially examined as P.W.1 and her evidence has

to be discarded as she failed to offer for cross-

examination. Thereafter, the present petitioner is

examined as P.W.2. Even present petitioner failed to

offer for cross-examination and the Court below by

order dated 2.2.2021 was compelled to discard even

the evidence of present petitioner. Thereafter

application is filed and the said order is recalled.

10. Now, in the ejectment suit, the present

petitioner who is arrayed as defendant No.2 has

succeeded in protracting the hearing. The present

petitioner filed a transfer petition which was allowed

and the matter is withdrawn and transferred to

CCH.65. Even in ejectment suit, the present

petitioner's evidence was taken as 'Nil' by order dated

23.1.2021.

11. If all these significant details are taken into

consideration, it is clearly evident that the present

petitioner is deliberately seeking clubbing of ejectment

suit along with partition suit. The ejectment suit is

filed by the first respondent based on the registered

release deed and therefore, first respondent is entitled

to proceed with the suit. In the present case on hand,

if clubbing is permitted that would invariably protract

the disposal of ejectment suit. This Court is of the

view that it is also not desirable to club the ejectment

suit with the partition suit. The present petitioner has

to succeed in the partition suit provided she is able to

prove that the registered release deed is on account of

fraud. Unless the release deed is set aside, the first

respondent is entitled to seek possession. The

clubbing at this juncture would be advantageous to

the present petitioner and would cause serious

prejudice to respondent No.1. The clubbing application

is filed with a malafide intent and the applicaton lacks

bonafides. The order sheet also indicates that the

conduct of the petitioner is grossly unfair. Therefore,

this is not a fit case to order for clubbing of both the

suits.

12. Therefore, the order under challenge does

not warrant any interference at the hands of this

Court. No case is made out.

14. Hence, I pass the following:

ORDER

The writ petition is dismissed.

Sd/-

JUDGE

*alb/-