Karnataka High Court
Shri S Mahavirchand Dhariwal vs Ashok S Dhariwal on 29 February, 2024
-1-
NC: 2024:KHC:8545
WP No. 18712 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE R. NATARAJ
WRIT PETITION NO. 18712 OF 2021 (GM-CPC)
BETWEEN:
1. SHRI S MAHAVIRCHAND DHARIWAL,
S/O LATE P SUGGANCHAND DHARIWAL,
AGED ABOUT 61 YEARS,
R/O NO.355, 1ST CROSS,
ROBORTSONPET,
KOLAR GOLD FIELDS -563 122.
2. SMT. NIRMALA @ ICHARAJI,
W/O S MAHAVEERCHAND DHARIWAL,
AGED ABOUT 61 YEARS,
R/O NO.355, 1ST CROSS,
ROBORTSONPET,
KOLAR GOLD FILEDS -563 122.
...PETITIONERS
(BY SMT. SRUTI C CHAGANTI, ADVOCATE)
AND:
Digitally
signed by BS
RAVIKUMAR ASHOK S DHARIWAL,
Location:
HIGH S/O LATE P SUGANCHAND DHARIWAL,
COURT OF
KARNATAKA AGED ABOUT 65 YEARS,
R/O NO.7, SHRAVANI PRIDE,
MARKET ROAD, GANDHI BAZAAR,
BANGALORE-560 004.
...RESPONDENT
(BY SRI P.D SURANA, ADVOCATE)
THIS WP IS FILED UNDER ARTICLE 227 OF
CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER
DATED 27.02.2020 PASSED BY THE XLIII ADDL. CITY CIVIL
AND SESSIONS JUDGE AT BANGALORE ON MEMO DATED
27.8.2019 (CCH 44) IN O.S NO. 132/2018 AT ANNEXURE-J.
-2-
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WP No. 18712 of 2021
THIS PETITION, COMING ON FOR PRELIMINARY HEARING
- GROUP B, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioners who are the plaintiffs in OS
No.132/2018 have filed this petition challenging an order
dated 27-2-2020 passed therein, by which, the trial Court
refused to club O.S.No.5286/2017 and O.S.No.132/2018.
2. The facts in brief are that, the respondent
herein filed O.S.No.5286/2017 claiming that he and
petitioner No.1 are brothers. That petitioner No.2
requested the respondent to provide financial assistance
as she wanted to commence a business in Pawn Broking.
He alleged that petitioner No.1 had suffered losses in the
industry which he was running under the name and style
of M/s.P.M. Alloys and Steels. Therefore, the respondent
agreed to pay a sum of Rs.25,00,000/-, which he
transferred to petitioner No.2 on 04-08-2014. The
respondent claim that even though the said amount
became payable as promised by the petitioners, they did
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not pay the said money which forced him to file suit for
recovery of said sum of Rs.25,00,000/-.
3. The petitioners herein filed O.S.No.132/2018
contending that the respondent herein had undertaken
development of his property and also requested that the
properties of the petitioners be assimilated in the said
development and assured to pay a sum of Rs.25,00,000/-
and agreed to part with 10,000 sq.ft., of developed
property. Therefore on his advise, the Petitioner No.2
executed gift deeds in favour of Petitioner No.1, who in
turn executed a gift deed in favour of the respondent.
They claimed that the respondent paid the said sum of
Rs.25,00,000/-, but later filed a suit for recovery of said
Rs.25,00,000/- claiming it to be a loan. Therefore, they
filed a said suit for cancellation of the Gift Deeds executed
by petitioner No.2 in favour of petitioner No.1 and the
consequent Gift Deed executed by petitioner No.1 in
favour of respondent.
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4. A Miscellaneous petition was filed by the
petitioners herein in Misc.No.164/2018 for transfer of both
the suits to one Court. The said Misc. Petition was allowed
in terms of the order dated 08-03-2019 and
O.S.No.132/2018 was transferred to the Court where
O.S.No.5286/2017 was pending. After both the suits were
transferred to one Court, a Memo was filed in
O.S.No.132/2018 to club both the suits. The trial Court
rejected the memo on the ground that petitioner No.1 in
O.S.No.132/2018 is not a party in O.S.No.5286/2017 and
hence, both the cases cannot be clubbed. Being aggrieved
by the said order, the petitioners have filed this petition.
5. The learned counsel for the petitioners submits
that the written statement filed by the petitioners in
O.S.No.5286/2017 is the assertions made by them in the
plaint in O.S.No.132/2018 and therefore, the facts in both
the suits are similar and therefore, both the suits ought to
have been clubbed for a common trial and common
judgment. In support of the contentions of the learned
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counsel for the petitioners, she has relied upon the
judgment of the Apex Court in the case of Chitivalasa
Jute Mills Vs. Jaypee Rewa Cement1.
6. Per contra, learned counsel for respondent
submitted that the relief in O.S.No.5286/2017 is to
recover a sum of Rs.25,00,000/- while the suit in
O.S.No.132/2018 is for the cancellation of the Gift Deeds,
on the ground that the respondent had filed a suit for
recovery of a sum of Rs.25,00,000/-. Therefore, he
contends that the facts in both the suits are different and
issues that arise for consideration in both the suits are
different and therefore, both the suits cannot be clubbed.
7. I have considered the submissions made by
learned counsel for the petitioners and learned counsel for
the respondent.
8. As rightly contended by the learned counsel for
the respondent, the suit in O.S.No.5286/2017, was a suit
AIR 2004 SC 1687
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for a mere recovery of a sum of Rs.25,00,000/-. Though
the petitioner No.2 herein was arrayed as defendant
contended that the said sum of Rs.25,00,000/- was part
of earlier transaction between them relating to Joint
Development of a property belonging to them, the suit in
O.S.No.132/2018 was for cancellation of Gift Deeds
executed by the petitioner No.2 in favour of petitioner No.
1 and consequent gift by petitioner No.1 in favour of
respondent. Therefore, both the suits do not relate to the
same property but are based on different set of facts and
different cause of action. In the judgment of the Apex
Court cited by the learned counsel for the petitioners, the
dispute was relating to a set of invoices between
07-01-1992 and 31-12-1993 and therefore, the Apex
Court in case of Chitivalasa Jute Mills Vs. Jaypee Rewa
Cement (Supra) held that "the cause of action alleged by
one party as foundation for the relief sought for in one
case is the ground of defence in the other case".
However, the present case is distinguishable on facts and
both the suits were distinctly different and the cause of
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action in both the suits are different, and therefore, the
trial Court did not rightly club both the suits. Since both
the suits have to be tried by the same Court, it is
needless to mention that the Court will take into
consideration, the out come of the first suit while
determining the second suit.
9. Accordingly, the petition is disposed off.
Sd/-
JUDGE
tsn*
