Reeth Abraham vs Sunil Abraham
2023 Latest Caselaw 2582 Kant

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                                                      WP No. 24842 of 2022




                   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                          DATED THIS THE 24TH DAY OF MAY, 2023

                                          BEFORE

                       THE HON'BLE MR JUSTICE KRISHNA S DIXIT

                       WRIT PETITION NO. 24842 OF 2022 (GM-FC)

                   BETWEEN:

                   REETH ABRAHAM,
                   D/O LT B A DEVAIAH,
                   AGED 60 YEARS,
                   R/AT NO 609, 6TH BLOCK,
                   80 FT ROAD, KORAMANGALA
                   BANGALORE 560 095.
                                                              ...PETITIONER
                   (BY SRI. SURESH S LOKRE., SENIOR COUNSEL A/W
                       SRI. SHRAVAN S LOKRE.,ADVOCATE)

                   AND:

                   SUNIL ABRAHAM,
                   S/O T ABRAHAM,
                   AGED 64 YEARS,
Digitally signed
by SHARADA         R/AT NO 609, 6TH BLOCK,
VANI B             80 FEET ROAD, KORAMANGALA,
Location: HIGH     BANGALORE 560 095.
COURT OF
KARNATAKA                                                   ...RESPONDENT
                   (BY SMT. S K PRATHIMA.,ADVOCATE)

                        THIS WRIT PETITION IS FILED UNDER ARTICLES 226
                   AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
                   ALLOW THE ABOVE WRIT PETITION.QUASH THE ORDER DATED
                   25.11.2022 UNDER I.A. NO. 9 PRODUCED AT ANNEXURE-A
                   PASSED BY THE LEARNED 1ST ADDL. PRINCIPAL JUDGE
                   FAMILY   COURT   BANGALORE,     IN   O.S.NO.  137/2017,
                   DISMISSING THE I.A. U/S 151 OF THE CPC FOR CLUBBING OF
                   THE SUIT ALONG WITH O.S NO. 220/2022, AND ALLOW THE
                   SAME.
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                                      WP No. 24842 of 2022




      THIS PETITION COMING ON FOR PRELIMINARY HEARING
IN B GROUP THIS DAY, THE COURT MADE THE FOLLOWING:

                          ORDER

The Petitioner - wife is knocking at the doors of Writ

Court for assailing the order dated 25.11.2022 whereby

the learned I Additional Principal Judge, Family Court at

Bengaluru in O.S.No.137/2017 having dismissed her

application in I.A. No.9 (Annexure-A), has refused to club

two pending suits for a common trial and disposal.

Learned counsel for the Petitioner vehemently argues that

when the matter essentially relates to the same property

and the lis is between the ex-spouses, the grant of the

subject application was eminently warranted.

2. Learned counsel appearing for the Respondent

- husband opposes the petition with equal vehemence

contending that her client's suit in O.S No. 137/2017 is for

partition, whereas petitioners injunctive suit in O.S No.

220/2022 is of recent times; the issues to be decided in

the former are different from those in the latter; the

WP No. 24842 of 2022

impugned order being the product of discretionary power,

the indulgence of Writ Courts is not warranted.

3. Having heard the learned counsel for the parties

and having perused the Petition papers, this Court is

inclined to grant indulgence in the matter for the following

reasons:

(a) The parties are ex-spouses is not in dispute, their

marriage having been dissolved by the Family Court. The

challenge to the Dissolution Decree in MFA No. 1850/2020,

is still pending, is true. However, that pendency is

irrelevant inasmuch as even if their spousal status is

restored by reversing the decree of dissolution of

marriage, every spouse is an independent person qua the

other.

(b) The Respondent - husband has filed a Partition

Suit in O.S.No.137/2017 wherein the Petitioner wife is the

defendant; similarly, in Petitioners Injunctive Suit in

O.S.No.220/2022 the Respondent - husband happens to

be the defendant; the subject property in both the suits is

WP No. 24842 of 2022

the same. In both the suits, pleadings are complete and

issues have been framed. The trial has begun in the

partition suit, whereas it is yet to begin in the injunctive

suit. Obviously, two suits will have their own issues;

however, that per se, is no ground for denying the request

for clubbing, especially when both the suits are at the

hands of the same learned Judge.

(c) It is also true that in matter of transfer and

clubbing of cases, a greater discretion lies with the Court

in which they are pending. However, it is not a discretion

of a Mughal Emperor. Lord Halsbury, more than century

ago in SHARP vs. WAKEFIELD, 1891 AC 173, said that

discretion means according to rules of reason and justice.

Such an approach, at the hands of the Court below is not

reflected. What prejudice would be caused to the

Respondent should these suits be clubbed for the purpose

of trial, is not forthcoming despite the vociferous

submission of the learned counsel appearing for the

Respondent.

WP No. 24842 of 2022

(d) When parties are the same, property involved is

same and Court in which the suits are brought is the

same, ordinarily, the request for clubbing should not be

denied, subject to all just exceptions, into which the

argued case of the Respondent does not fit. This Court

hastens to add that, there is no repugnancy between the

issues framed in the partition suit and those in the

injunctive suit and therefore, clubbing would save time,

energy, and vyavadhaana of all the stakeholders. Of

course, it is left to the Judge's discretion to render a

common or separate judgment & decree.

In view of the above, this Writ Petition succeeds; a

Writ of Certiorari issues quashing the impugned order; the

learned Trial Judge is request to allow the subject

application of the Petitioner for clubbing and try both the

suits together.

Costs made easy.

Sd/-

JUDGE Bsv