Madhya Pradesh High Court
M/S Dyna Chem Proprietor Mahesh ... vs Jaipaldas Punjabi on 26 July, 2021
Author: Subodh Abhyankar
1
MP No.1463/2021
High Court of Madhya Pradesh, Jabalpur
Bench at Indore
Miscellaneous Petition No.1463/2021
(M/s. Dyna Chem
Proprietor Mahesh Kumar Punjabi s/o Ghuriyomal Punjabi
Versus
Jaipaldas Punjabi s/o Ghuriyomal Punjabi)
(Case was heard on 06.07.2021)
Counsel for the : Shri Akash Rathi, learned counsel for the petitioner /
Parties defendant.
Shri Prateek Maheshwari, learned counsel for the respondent
/ plaintiff.
Whether approved : Yes
for reporting
Law laid down :
(1) By no stretch of imagination can it be said that if the
two suits are consolidated, it would save valuable time and
energy of the court and the parties because in the suit for
eviction, only judgement is to be declared whereas in the
suit of declaration the entire evidence is still to be led by the
parties which is likely to take sufficiently long time in the
present scenario of COVID-19. In the considered opinion of
this court, the only purpose that can be served by
consolidating the suit of eviction with the declaration suit is
that it would further delay the final disposal of eviction suit
in which only the judgement is to be delivered.
Decisions Relied upon:-
Mahalaxmi Cooperative Housing Society Limited &
others v. Ashabai Atmaram Patel through Legal
Heirs & others reported as (2013) 2 SCC 404 (para
45).
(2) The narration of facts clearly reveals the tendency of the
petitioner to misuse the process of the court at its pleasure
by filing frivolous petitions one after the another so that to
browbeat the trial court on the ground that the petition is
pending before this court. In fact, this trickery was also tried
on this court when it is submitted that the Supreme court has
already issued notice in the SLP preferred by the petitioner
which means there is some substance in the matter hence the
stay is justified but this court condemns such practice. Even
the Supreme Court, on many occasions, has clarified that
mere issuance of notice does not, ipso facto becomes an
order of stay.
This Court is of the considered opinion that there are
two types of litigants, one, who do not know how to use the
process of the court and to their own prejudice, shudder at
2
MP No.1463/2021
the very idea of getting into even a necessary litigation, and
the other type is the one who know how to misuse the
process of the court to its advantage and enter into
unnecessary litigation by choice, such practice needs to be
viewed strictly and has to be curbed with an iron hand.
Exemplary cost of Rupees Two lakhs (Rs.200,000/-) was
imposed on the petitioner for blatantly misusing the process
of the court.
Significant : 15 to 29
paragraph numbers
JUDGMENT
(Case was heard on 06.07.2021)
Post for
26/07/2021
(SUBODH ABHYANKAR)
JUDGE
rcp
MP No.1463/2021
High Court of Madhya Pradesh, Jabalpur
Bench at Indore
Miscellaneous Petition No.1463/2021
(M/s. Dyna Chem
Proprietor Mahesh Kumar Punjabi s/o Ghuriyomal Punjabi
Versus
Jaipaldas Punjabi s/o Ghuriyomal Punjabi)
*****
Shri Akash Rathi, learned counsel for the petitioner / defendant.
Shri Prateek Maheshwari, learned counsel for the respondent / plaintiff.
*****
ORDER
(Passed on this 26th day of July, 2021)
This miscellaneous petition under Article 227 of the
Constitution of India has been filed by the petitioner / defendant
against the order dated 08.03.2021 (Annexure P/1) passed in Civil
Suit No.103-A/2016 by the Civil Judge Class-I Indore, District
Indore (MP) whereby the petitioner's application filed under Section
151 of the Code of Civil Procedure, 1908 for consolidation of two
suits has been rejected.
2. In brief, the facts giving rise to the present petition are
that the respondent / plaintiff filed a Civil Suit No.103-A/2016
(Annexure P/3) for eviction of the petitioner / defendant in respect of
Shop No.89 and 13-14, RNT Marg, Dawa Bazar, Indore.
3. The aforesaid plaint has been opposed by the petitioner /
defendant by filing a written statement, traversing the averments
made in the plaint and also stating that the plaintiff and the
defendant are the real brothers, and the disputed property is
purchased out of the funds of Joint Hindu Family Property. Hence,
MP No.1463/2021
another suit has also been filed by the petitioner / defendant (Mahesh
s/o Late Ghuriyomal Punjabi) being Civil Suit No.1319-A/2019 for
declaration of title over the aforesaid suit property, being a Member
of the Joint Hindu Family Property. The aforesaid suit is pending
and has been transferred by the District & Sessions Judge, Indore
vide order dated 19.02.2021 passed in MJC No.44/2021 in the Court
where the suit (Civil Suit No.103-A/2016) filed by the respondent /
plaintiff is pending.
4. Since two suits between the same parties were filed in
connection with the same property, the petitioner / defendant filed an
application under Section 151 of the Code of Civil Procedure for
consolidation of Civil Suit No.1319-A/2019 with the present Civil
Suit No.103-A/2016, so that both the civil suits which belong to the
Joint Hindu Family Property may be decided together. The aforesaid
application filed by the petitioner / defendant came to be rejected by
the Civil Court on 08.03.2021, which is under challenge before this
Court.
5. Shri Akash Rathi, learned counsel for the petitioner has
submitted that in both the cases, common question which is to be
decided by the Court is regarding the ownership of the property; and
in case, if they are not consolidated, it would give rise to unnecessary
complications and multiplicity of the proceedings.
6. In support of his submissions, counsel has relied upon
MP No.1463/2021
the judgment of the Supreme Court in the case of Premlal Nahata &
others v. Chandiprasad Sikariya reported as (2007) 2 SCC 551.
Another cited judgment of the Supreme Court is in the case of
Mahalaxmi Cooperative Housing Society Limited & others v.
Ashabai Atmaram Patel through Legal Heirs & others reported
as (2013) 2 SCC 404 in which the Supreme Court has held that in
appropriate cases, consolidation is justified, as the purpose of
consolidation is to save costs, time and effort; and also to obviate the
multiplicity of the proceedings.
7. Shri Rathi has also submitted that the finding recorded
by the learned Judge of the lower Court that both the suits are at
different stages hence cannot be consolidated, is not a reason for not
consolidating the two civil suits in which common issues are to be
tried. It is further submitted that there is no legal restriction also, that
the two suits having two different stages, cannot be consolidated.
8. A reply to the petition has also been filed by the
respondent.
9. Shri Prateek Maheshwari, learned counsel for the
respondent / plaintiff has vehemently opposed the prayer and it is
submitted that the suit is at its final stage of delivering judgement
and the petition is liable to be dismissed only on the ground that the
material facts have been suppressed by the petitioner / defendant and
the petitioner has also obtained an order of stay from this Court on
MP No.1463/2021
15.06.2021, that the final judgment may not be passed by the trial
Court till the next date of hearing.
10. Counsel has submitted that there is history of litigation
between the parties and this is not the first time that the petitioner
has knocked the doors of this Court; in fact, there are as many as
three petitions which have been filed by the petitioner before this
Court challenging various interlocutory order (s) passed by the Court
below. Against the order dated 11.09.2019 (Annexure R/1), passed
by this Court in Miscellaneous Petition No.4293/2019 and
Miscellaneous Petition No.4294/2019, the petitioner has also
approached the Supreme Court in Petition (s) for Special Leave to
Appeal (C) No.24937/2019, which is still pending, as the notices
have been issued on 07.11.2019 (copy filed at page 37 & 38 of
reply).
11. Thus, counsel has submitted that looking to the fact that
Civil Suit No.103-A/2016 is at its fag end and in the earlier round of
litigation, there are orders passed by this Court in Miscellaneous
Petition No.4293/2019 dated 11.09.2019, directing the learned Judge
of the trial Court to expedite the matter and conclude the same within
a period of four months from the date of receipt of certified copy of
the order passed and Miscellaneous Petition No.4294/2019 vide
order dated 11.09.2019. Counsel has submitted that these orders have
been brought to the notice of this court by the learned counsel for the
MP No.1463/2021
petitioner while obtaining stay order from this Court in the present
matter on 15.06.2021; and thus, the petition is liable to be dismissed
on this ground only.
12. On merits, counsel has submitted that the learned Judge
of the trial Court has rightly observed that Civil Suit No.103-A/2016
which is an eviction suit is at its final stage of delivering the
judgment only, as the parties have already been heard finally by the
trial Court and only judgment is required to be delivered whereas,
the other Civil Suit No.1319-A/2019 which is a suit for declaration,
is at its preliminary stage. Hence, there is no point in consolidating
the aforesaid two suits.
13. In rebuttal, Shri Akash Rathi, learned counsel for the
petitioner / defendant has submitted that in SLP (C) No.24937/2019
arising out of order dated 11.09.2019 passed in Miscellaneous
Petition No.4293/2019 and Miscellaneous Petition No.4294/2019,
the Supreme Court has already issued notice and issuance of notice
in itself is sufficient to assume that there is some substance in the
petitioner's claim and thus, even if the stay order has been passed by
this Court, the same is justified under the facts and circumstances of
the present case.
14. Heard learned counsel for the parties and perused the
record.
MP No.1463/2021
15. Admittedly, the Civil Suit No.103-A/2016 was filed in
the year 2016 whereas the Civil Suit No.1319-A/2019 was filed after
around three years on 16.12.2019. The application for consolidation
of the suits was filed by the petitioner on 08.03.2021. It is rather sur-
prising that it took almost one year and three months to the petitioner
to realize that such an application for consolidation can also be filed.
It is also found that earlier when due to non-deposit of rent, the de-
fence of the petitioner/defendant was struck off, he preferred MP
No.4293/2019 and MP No.4294/2019 which came to be dismissed
vide the common order dated 11.09.2019 with the following observa-
tions: -
"The civil suit is of the year 2016 and all kind of de-
laying tactics have been adopted by the defendant, and
therefore, the trial Court is directed to conclude the
trial of the suit within a period of four months from
the date of receipt of certified copy of this order. The
trial Court will not grant any unnecessary adjourn-
ment in the matter and in case, need so arises in future
for grant of adjournment, record reason for granting
such adjournment."
(emphasis supplied)
16. Subsequently, two other petitions viz. MP No.6931/2019
and MP No.6932/2019 and MP No.6933/2019 were also filed by the
petitioner before this Court and these three petitions were also dis-
missed vide order dated 17.02.2020. The relevant paras of the same
reads as under:-
" In the present case, the Written Statement was filed
in 2016, the issues were framed on 3/2/2017 and the
application was filed in the year 2019 and keeping in
MP No.1463/2021
view Order 8 Rule 1 of the Code of Civil Procedure,
1908, as no reasonable cause was shown by the defen-
dant, the trial Court has rejected the application.
This Court is of the considered opinion that the trial
Court has rightly rejected the applications filed by the
defendant and it appears that they have been filed
only to delay the trial on some pretext or the other.
This Court does not find any reason to interfere in the
matter.
In the light of the judgment delivered in the case of
Shalini Shyam Shetty v. Rajendra Shankar Patil
reported in 2010 (8) SCC 329-2 by the apex Court,
this Court is of the considered opinion that the order
of the trial Court does not suffers from any patent ille-
gality nor any jurisdictional error has been committed
by the Court below. Accordingly, the admission is de-
clined.
The other important aspect of the case is that two
more petitions were preferred earlier ie., Misc. Peti-
tion No.4293/2019 and 4294/2019 by the same defen-
dant again under Article 227 of the Constitution of In-
dia and they have also been dismissed on 11/9/2019,
meaning thereby, during the pendency of the Civil
Suit as many as five petitions have been filed by the
defendant. This itself speaks volumes about the con-
duct of the defendant. The trial Court was earlier di-
rected to conclude the trial within a period of 4
months and the same has not been done.
Resultantly, the trial Court is now directed to comply
with the order passed by this Court and conclude the
trial at the earliest.
With the aforesaid, the present petition is dismissed."
(emphasis supplied)
17. Yet another petition MP No.1116/2020 was again filed
by the petitioner but the same was also dismissed on 26.02.2020.
18. It is a matter of record that against the order dated
11.09.2019 passed by this court in MP No.4293/2019 dated
11.09.2019, SLP No.24937/2019 has been preferred by the petitioner
before the Supreme Court in which notices have been issued on
07.11.2019 This court is not impressed with the arguments of Shri
MP No.1463/2021
Rathi that mere issuance of notice itself is enough for this court to
stay the proceedings of the trial court.
19. So far as the question of consolidation of civil suits is
concerned, the supreme court, in the case of Mahalaxmi Coop.
Housing Society Ltd. (supra) has held as under: -
"45. We are also not much impressed by the argument
of the learned Senior Counsel appearing for the
respondent that the trial court has committed an error
in not consolidating the various suits including Civil
Suits Nos. 292 of 1993 and 681 of 1992 to be tried
together as ordered by the District Court in its order
dated 29-8-2006 in Civil Misc. Application No. 16 of
2005. Section 24 CPC only provides for transfer of
any suit from one court to another. The court has not
passed an order of consolidating all the suits. There is
no specific provision in CPC for consolidation of
suits. Such a power has to be exercised only under
Section 151 CPC. The purpose of consolidation of
suits is to save costs, time and effort and to make the
conduct of several actions more convenient by
treating them as one action. Consolidation of suits is
ordered for meeting the ends of justice as it saves the
parties from multiplicity of proceedings, delay and
expenses and the parties are relieved of the need of
adducing the same or similar documentary and oral
evidence twice over in the two suits at two different
trials. Reference may be made to the judgment of this
Court in Prem Lala Nahata v. Chandi Prasad
Sikaria."
(emphasis supplied)
20. Thus, this court is required to see if the application filed
by the petitioner falls within the scope of the aforesaid dictum of the
Supreme court that the "the purpose of consolidation of suits is to
save costs, time and effort and to make the conduct of several
actions more convenient by treating them as one action.
MP No.1463/2021
Consolidation of suits is ordered for meeting the ends of justice as it
saves the parties from multiplicity of proceedings, delay and
expenses and the parties are relieved of the need of adducing the
same or similar documentary and oral evidence twice over in the
two suits at two different trials."
21. In the present case, admittedly, the evidence has already
been led by the parties and the case is fixed for delivery of
judgement only. Meaning thereby that there is simply nothing more
to be done in the present suit for eviction, whereas, the other suit
which was filed in the year 2019 for declaration by the petitioner is
in its preliminary stages only. In such circumstances, by no stretch of
imagination can it be said that if the two suits are consolidated, it
would save valuable time and energy of the court and the parties
because in the suit of declaration the entire evidence is still to be led
by the parties which is likely to take sufficiently long time in the
present scenario of COVID-19. In the considered opinion of this
court, the only purpose that can be served by consolidating the suit
of eviction with the declaration suit is that it would further delay the
final disposal of eviction suit in which only the judgement is to be
delivered.
22. In view of the aforesaid discussion, this court is not
inclined to interfere with the impugned order passed by the trial
MP No.1463/2021
court which does not appear to suffer from any patent illegality or
jurisdictional error. As a result the petition, sans merits is hereby
dismissed.
23. So far as the contention of Shri Maheshwari that there is
suppression of facts on the part of the petitioner in filing this
petition, as certain material orders passed by this court in the earlier
round of litigation has not been brought to the notice of this court
while obtaining the stay order is concerned, this court finds force
with the contentions of Shri Maheshwari. On perusal of the orders
passed by this court in MP No.4293/2019 dated 11.09.2019 and in
MP No.6931/2019 dated 17.02.2020 which have been reproduce
herein above, this court has no hesitation to come to a conclusion
that had these orders been shown to this court on 15.06.2021, this
court would certainly not have granted the stay order restraining the
trial court to pass the final judgement. The contention of shri Rathi
that these orders have no bearing on the case on hand is fallacious
and is hereby rejected. In the considered opinion of this court if this
court, in the earlier round of litigation, when it has directed the trial
court to expedite the matter and dispose it of within a period of four
months, in that case such order assumes importance and is of
significance while granting stay of the proceedings. Not only that,
the petitioner has also neither pleaded nor placed on record any
earlier order passed by this court in the petitions filed by the
MP No.1463/2021
petitioner as also the order passed by this court in the MP
No.6931/2019 on 17.02.2020 wherein also this court had
reprimanded the petitioner and again directed the trial court to
comply the earlier order and conclude the trial at the earliest. Similar
is the situation with the other order passed by this court in MP
No.1116/2020 which was dismissed by this court on 26.02.2020.
25. The aforesaid narration of facts clearly reveals the
tendency of the petitioner to misuse the process of the court at its
pleasure by filing frivolous petitions one after the another so that to
browbeat the trial court on the ground that the petition is pending
before this court. In fact, this trickery was also tried on this court
when it is submitted by the counself for the petitioner that the
Supreme court has already issued notice in the SLP preferred by the
petitioner which means there is some substance in the matter hence
the stay is justified but this court condemns such practice. Even the
Supreme Court, on many occasions, has clarified that mere issuance
of notice, does not, ipso facto becomes an order of stay.
26. This Court is of the considered opinion that there are
two types of litigants, one, who do not know how to use the process
of the court and to their own prejudice, shudder at the very idea of
getting into even a necessary litigation, and the other type is the one
who know how to misuse the process of the court to its advantage
MP No.1463/2021
and enter into unnecessary litigation by choice, such practice needs
to be viewed strictly and has to be curbed with an iron hand.
27. In such circumstance, the petitioner being the second
category of litigant is liable to pay the exemplary cost of Rupees
Two lakhs (Rs.200,000/-) for blatantly misusing the process of the
court. Out of the said amount of two Lakhs, Rupees One Lakh to
be paid to the respondent/plaintiff Jaipaldas Punjabi in the trial court
within a period of 2 (two) weeks from today, and, further Rupees
One Lakh to be transferred / deposited in Bank Account
No.34872467662 (IFS Code : SBIIN0030528) State Bank of India
(30528) High Court Campus, MG Road, Indore-01 (MP) of High
Court Bar Association Advocate Welfare within a period of 4
(four) weeks from today and producing the receipt / certificate of the
same before the concerned trial Court within one week from the date
of deposit.
28. It is made clear that if the petitioner fails to comply with
this order within the period, as prescribed, the trial court shall initiate
action, in accordance with law for compliance of this order.
29. Needless to say, the learned Judge of the trial court shall
conclude the trial, as directed by this court in earlier orders, as
expeditiously as possible.
(Subodh Abhyankar)
Judge
Pithawe RC
RAMESH CHANDRA PITHWE
2021.07.27 19:06:20 +05'30'
