Full Judgment Text
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH
WRIT PETITION NO. 4709 OF 2003
AND
WRIT PETITION NO. 4711 OF 2003
WRIT PETITION NO. 4709 OF 2003
Sitaram Deorao Pawar ... PETITIONER
Versus
Rupabai Wd/o Gundulal Khatri
& Ors. ... RESPONDENTS
WRIT PETITION NO. 4711 OF 2003
Totaram Deorao Pawar ... PETITIONER
Versus
Rupabai Wd/o Gundulal Khatri
& Ors. ... RESPONDENTS
Shri A.S. Kilor, Advocate for the petitioner.
Shri R.L. Khapre, Advocate for the respondents.
.....
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CORAM : B.P. DHARMADHIKARI, J.
DATE OF RESERVING THE JUDGMENT : DECEMBER 09, 2005.
DATE OF PROUNCING THE JUDGEMENT: DECEMBER 12, 2005.
JUDGMENT :
1. Both these Writ Petitions challenge identical
order passed on 6/11/2003 by Joint Civic Judge (JD) ,
Buldhana, in Regular Civic Suit Nos. 4 of 1986 and 6
of1986. The respondents in both these writ petitions
moved applications under Order 1 Rule 10 of Civil
Procedure Code, for adding them as parties in these suits.
Respond No.12 Brijlal in both matters moved separate
application while respondents No. 1 to 8 moved combined
application. In both civil suits by identical order, these
applications have been allowed. The Petitioners, who are
plaintiffs, have approached this Court challenging these
orders.
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2. I have heard Advocate Shri Kilor for the
Petitioners and Advocate Shri Khapre for respondents.
Both of them suggested for final decision at admission
stage itself. On 21/12/2003 this court while issuing
notice made it clear that matters may be disposed of
finally at admission stage only. Accordingly both the sides
also placed their written notes of argument along with
Xerox copies of citations for consideration of this court.
After going through said written notes of arguments, it
was found that Advocate Khapre for respondents made
statement in his written notes that all the suits between
various parties in relation to suit property are
consolidated. There are total 5 suits in relation to very
same property. In view of this, the issue was placed
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before petitioner and his Counsel Shri Kilor took time to
verify the position. Advocate Shri Khapre for respondents
also took time to ascertain factual position. On
9/12/2005 both the Advocates stated that suits are
consolidated and evidence is being recorded only in one
matter.
3. Civil Suit No. 4 of 1986 is filed by petitioner
Totaram while Civic Suit No. 6 of 1986 is filed by
petitioner Sitaram against Rupabai for specific
performance of contract. In Civic Suit No. 4 of 1986
petitioner claims to have entered into an agreement for
sale on 6/1/1983 with her for purchase of 1H 01R out of
survey No. 23/3 while the other petitioner claims to have
entered into similar transaction for remaining 1H 01R
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from same survey number on same date with Rupabai.
Amrut Khatri & Yamunabai Khatri are stated to be
relatives of said Rupabai and they are defendants No. 2
and 3 in both the suits. It is contended that they
deliberately in collusion with Rupabai obtained sale deed
of this land on 21/2/1983 despite knowledge of their
earlier contract with them. It is further stated that the
defendants in both the suits have set up their relations
who have commenced various litigation in Civil as also
revenue courts. The Petitioners have stated that they
were also placed the possession of Suit fields and
application for appointment of receiver was pending before
Sessions Judge Buldhana. It is to be noted that copies of
plaints in all 5 suits are not produced on record by
parties. Predecessorsintitle of added parties namely
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Ramlal & Sheshlal appears to have filed two suits vide
RCS Nos. 167 of 1983 and 236 of 1986. After death of
Ramlal, the added parties are prosecuting those suits as
plaintiffs. Last respondent Brijlal in both these petitions
claims to have purchased half of suit property from Amrut
Khatri and to be in possession thereof. It appears that
present Petitioners are party defendants in RCS Nos. 167
of 1983 and 236 of 1986. Special Civil Suit No. 16 of
1984 is filed by Rupabai, Amrutrao & Yamunabai
together against Sitaram, Totaram, Ramlal, Sheshlal &
Talathi in person for declaration that alleged agreement
dated 6/1/1983 is obtained by present Petitioners by
fraud and is not binding upon them. The added parties
claim that in 1980 Rupabai inducted Ramlal & Sheshlal
as tenants in said field property and when their
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possession was obstructed, Ramlal & Sheshlal filed RCS
No. 167 of 1983. It is thus apparent that facts giving rise
to this litigation are intermingled and decision in any Suit
is likely to affect the other Suit. The landowner Rupabai
with Amrutrao & Yamunabai appear to be party in all
cases. The order of consolidation passed by court below
therefore is just and proper and nobody has made any
grievance against it. Accordingly all the suits are now
before the same court.
4. In AIR 2004 S.C.1687 Chitivalasa Jute Mills.,
M/s. v. M/s. Jaypee Rewa Cement, the Hon'ble Apex
Court has observed about consolidation as under:
"12. The two suits ought not to be tried
separately. Once the suit at Rewa has
reached the Court at Visakhapatnam, the two
suits shall be consolidated for the purpose of
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trial and decision. The trial Court may frame
consolidated issues. The Code of Civil
Procedure does not specifically speak of
consolidation of suits but the same can be
done under the inherent powers of the Court
flowing from Section 151 of the CPC. Unless
specifically prohibited, the Civil Court has
inherent power to make such orders as may
be necessary for the ends of justice or to
prevent abuse of the process of the Court.
Consolidation of suits is ordered for meeting
the ends of justice as it saves the parties from
multiplicity of proceedings, delay and
expenses. Complete or even substantial and
sufficient similarity of the issues arising for
decision in two suits enables the two suits
being consolidated for trial and decision. 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
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different trials. The evidence having been
recorded, common arguments need be
addressed followed by one common judgment.
However, as the suits are two, the Court may,
based on the common judgment, draw two
different decrees or one common decree to be
placed on the record of the two suits. This is
how the trial Court at Visakhapatnam shall
proceed consequent upon this order of
transfer of suit from Rewa to the Court at
Visakhapatnam."
5. In AIR 2002 Raj. 341 between Ganeshdas v.
Ramesh Chandra, learned Single Judge of Rajasthan High
Court has made following observations in paragraph 9, 10
and 12:
"9. In Hans Raj v. Firm Hazarimal Dipa 1959
Raj LW 451, this Court came across a case
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where the two suits have been consolidated
by the trial Court; common issues had been
framed and after recording the evidence the
trial Court passed a decree allowing both the
suits. The submission to the effect that the
trial Court had committed an error in
consolidating the suits was rejected by this
Court as the trial Court had the competence
under its inherent jurisdiction to combine two
suits. In case where the parties are the same
anc cause of action is the same, there can be
no difficulty in consolidating the suits in
exercise of inherent powers of the Court
however, whether the suits can be
consolidated must dependent upon facts and
circumstances of a particular case and the
decision of the two suits must rest mainly on
determination of similar question and the
contesting party should also be the same.
Therefore, this Court held that "there must be
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sufficient unity or similarity in the matters in
issue in two suits to warrant their
consolidation".
10. In Shambhoo Dayal v. Chandra Kali Devi,
AIR 1964 All 350, the Allahabad High Court
held that in all, suits can be consolidated
provided common question of fact and law are
arising and it will not be a case of misjoinder
of parties.
12. In M/s. Bokaro and Ramgur Ltd. v. The
State of Bihar, AIR 1973 Pat 340 and in Nani
Gopal Bandhyopadhyaya v. Bhola Nath
Bandhopadhyaya, AIR 1973 Pat 437, it has
been held that the Court has inherent
discretionary power to consolidate the suits in
exercise of powers under S. 151, CPC
provided there is sufficient uniformity or
similarity in the matters in issue in the suits
or determination of suits rest mainly on the
common question and it is convenient to try
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them as analogous cases. In the former case,
the Hon'ble Patna High Court held as under:
"The question to be considered should also be
as to whether or not the nonconsolidation of
two or more suits is likely to lead apart from
multiplicity of suits, to leaving the door open
for conflicting decisions on the same issue
which may be common to the two or more
suits sought to be consolidated......... the
convenience of the parties and the expenses
in the two suits are subsidiary to the more
important considerations namely, whether it
will avoid multiplicity of suits and eliminate
chances of conflicting decisions on the same
point."
6. This Court also has in 1999 (1) LJ 433 between
Sheela Sohanlal Ghai & Ors. Vs. Snehlata Sohanlal Ghai
& Ors. held as under on the point of consolidation "It
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thus becomes apparent that the object of Section 10 is to
prevent multiplicity of proceedings with regard to the
same subject matter and to avoid contradictory judgments
being given by the same court. In circumstances such as
this, it would be open to the court to exercise its inherent
powers under Section 151 of Civil Procedure Code to pass
appropriate orders to do justice between the parties. The
object of consolidation of suit is to avoid multiplicity of
proceedings and unnecessary delay and protraction of
litigation. The two suits which are the subject matter of
this litigation are between the members of the same
family. Each part of the family in each suit is claiming to
be sole heir and legal representative of the deceased. The
evidence in both the suits would, in all probability, be
common. The witnesses would also be by and large
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common. Therefore, I am of the considered opinion that
the two suits ought to be directed to be consolidated and
tried together." (Para 7).
7. Adv. Kilor has relied upon Anil Kumar Singh vs.
Shivnath Mishra reported at 1995 (3) SCC 147 to contend
that provisions of Order 22 Rule 10 of CPC are not
applicable in the matter. Perusal of paragraph 3 of said
judgment reveals that the respondent therein obtained
interest in the suit property not by assignment or creation
but by a decree of Court. Hence it has been held that said
provision has no application. In relation to Order 1 rule
10 (2), in paragraph 7, Hon'ble Apex Court has stated that
condition precedent in the exercise of said power is
satisfaction of the Court that presence of party to be
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added is necessary to enable it to effectually and
completely adjudicate upon and settle all questions
involved in the suit. It is observed that object of said rule
is to bring on record all the persons who are parties to the
dispute relating to the subject matter so that the dispute
may be determined in their presence and at the same time
without any protraction, inconvenience and avoid
multiplicity of proceedings. In paragraph 10, Hon'ble
Apex Court has held that the person may be added as a
party defendant to the suit though no relief may be
claimed against him provided his presence is necessary for
complete and final decision on the question involved in the
suit. It has been held that as respondent sought to be
added was not party to the agreement of sale, dispute as
to specific performance could be determined even in his
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absence and therefore he was not necessary party. In E.
Ajay Kumar vs. Tulsabai reported at 1973 Mh.L.J. 683,
this High Court has taken similar view and in paragraph 9
observed that a stranger to the agreement and hence to
the controversy who claims to be entitled to the property
as such cannot come before the Court either as necessary
or proper party. Nandlal, respondent No. 2 in this matter
filed application contending that title of Tulsabai was
defective and he had interest in said property. His
application was rejected by trial Court and said rejection
was maintained in this reported judgment. Shamrao vs.
Gurukul Gruhanirman reported at 1995 (1) Mh. L.J. 893,
is another judgment of this High Court wherein similar
view has been taken in paragraph 6 and support has been
taken from E. Ajay Kumar vs. Tulsabai (supra). Applicant
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Shamrao contended that there was subsequent agreement
in his favour and therefore he was necessary/proper party
but his application was rejected by trial Court and said
rejection was maintained by this Court. A.I.R. 1981 Delhi
237 between Raj K. Mehera vs. Anjali is another ruling
cited by learned counsel for Petitioner which takes the
same view and views that if strangers are permitted to be
impeded, it would change the nature of suit.
8. Adv. Khapre has relied upon Herberstons Ltd.
vs. Kishore Rajaram reported at 2000 (3) Mh. L.J. 550, to
state that where party is absolutely necessary such person
can be joined against the wish of plaintiff. The intervenors
in that matter had filed a Civil suit before Calcutta High
Court and their contention was on account of intergroup
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rivalry amongst the parties, they would like to have their
say in the matter before Bombay High Court also. Their
prayer for intervention was rejected holding that they were
neither necessary nor proper parties. While so doing, in
paragraph 8, the above observations have been made. In
Geeta vs. Vijaycharan reported at 2000 (4) Mh. L.J. 556,
the dispute was about dealership and licence of kerosene
which came to be transferred in the name of applicant
after death of her husband. Nonapplicant No. 4 was
earlier given power of attorney to facilitate said business
but it came to be revoked. She also filed a suit for
declaration and permanent injunction against him but it
was withdrawn. Later on nonapplicant No. 4 filed a suit
against Indian Oil Corporation authorities only for
declaration in respect of dealership and for grant of
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mandatory injunction to supply kerosene to him.
Applicant was held to be necessary party to this dispute
and this High Court set aside the order of trial Court
rejecting her application for impleading her as party. In
paragraph 31 this Court has held that under Order 22
rule 10 the Court can add a party found to be necessary
to effectively and completely adjudicate upon and settle all
questions involved in the suit. In 2001 (3) Mh. L.J. 288
between Adam A. Sorathia vs Municipal Corporation of
Greater Bombay, issue was about removal of
unauthorised construction and it has been held that
landlords have directed substantial interest. Perusal of
paragraph 17 shows that it was held that landlord would
be better person to throw light on the controversy.
Learned counsel for respondents has also relied upon
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judgment between Gram Panchayat Garhi vs. Dharambir
and others reported at A.I.R. 1998 P&H 165, wherein
owner of adjoining land was held to be necessary party
because of his contention that he was the owner of portion
occupied by defendant and had entered into an agreement
to sale the same to the defendant though actual sale was
not executed. The defendant in his written statement
admitted said contention. While holding this, the Hon'ble
High Court held that the rule "dominius litus" is not
without exception. Khemchand vs. Vishnu, reported at
A.I.R. 1983 SC 124 is also cited by him to contend that
Order 22 rule 10 recognises the right of transferee to be
impeded as party despite section 52 of Transfer of
Property Act. Observations in paragraph 6 of this
judgment show that Hon'ble Apex Court found that
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position of such person is somewhat similar to the
position of a heir or legatee of a party who dies during the
pendency of a suit or proceeding. It is observed that they
can participate in execution proceedings even though their
names may not have been shown in the decree,
preliminary or final and hence, if they apply to the court
to be impeded as parties they cannot be turned out. A.I.R.
2001 SC 2552 (Dhurandhar Prasad vs. Jai Prakash
University) has been cited to show that a person who
acquires such interest subsequently during pendency of
suit may apply for leave to Court under Order 22 rule 10
and the person who ceases to have interest in the property
may lose interest in the litigation. Such person may not
even effectively defend it.
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9. The above case law, therefore, shows that in
appropriate cases the Court can add a party against the
wishes of plaintiff, if it finds that presence of that party is
essential for complete, effective decision of controversy
with a view to avoid further litigation between the parties.
From the facts of present matter stated above, it is
apparent that in view of the nature of controversy and the
allegations and counter allegations between parties the
order of consolidation is already passed and it has become
final. The parties are disputing the role of original owner
Rupabai and evidence in this respect as also evidence
about the possession of suit property is bound to be
common. Property involved and role played by Rupabai,
Amrut & Yamunabai is to be scrutinised in all matters.
The decree ultimately passed must be capable of being
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smoothly executed without any obstruction by the other
claimants. Thus object behind addition of parties and
consolidation is advanced by the impugned order. Object
of consolidation of suits to avoid multiplicity of
proceedings and unnecessary delay and protraction of
litigation is achieved in this matter. In circumstances, as
the suit is not only for specific performance and other
allegations made against present petitioners are also
required to be answered, I do not find anything wrong in
the exercise of discretion by Court below. After examining
the facts, Court has found it proper to allow the parties to
be added and by this approach of learned trial Court the
controversy can be settled finally, more effectively and
once for all. I have perused the cases/citations placed on
record by both the sides. Normally, in suit for specific
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performance strangers are not allowed to be added as
parties. However, here the predecessorintitle of said
strangers had already filed suit against petitioners in
relation to very same property. Not only this, petitioners
are last to file their suits. Dominus litus is not the rule
without exception. Hence, in the facts and circumstances
of present case I am not inclined to interfere in the matter
in exercise of writ jurisdiction.
10. Writ petitions are accordingly dismissed with no
order is to costs.
*
*dragon.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH
WRIT PETITION NO. 4709 OF 2003
AND
WRIT PETITION NO. 4711 OF 2003
WRIT PETITION NO. 4709 OF 2003
Sitaram Deorao Pawar ... PETITIONER
Versus
Rupabai Wd/o Gundulal Khatri
& Ors. ... RESPONDENTS
WRIT PETITION NO. 4711 OF 2003
Totaram Deorao Pawar ... PETITIONER
Versus
Rupabai Wd/o Gundulal Khatri
& Ors. ... RESPONDENTS
Shri A.S. Kilor, Advocate for the petitioner.
Shri R.L. Khapre, Advocate for the respondents.
.....
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CORAM : B.P. DHARMADHIKARI, J.
DATE OF RESERVING THE JUDGMENT : DECEMBER 09, 2005.
DATE OF PROUNCING THE JUDGEMENT: DECEMBER 12, 2005.
JUDGMENT :
1. Both these Writ Petitions challenge identical
order passed on 6/11/2003 by Joint Civic Judge (JD) ,
Buldhana, in Regular Civic Suit Nos. 4 of 1986 and 6
of1986. The respondents in both these writ petitions
moved applications under Order 1 Rule 10 of Civil
Procedure Code, for adding them as parties in these suits.
Respond No.12 Brijlal in both matters moved separate
application while respondents No. 1 to 8 moved combined
application. In both civil suits by identical order, these
applications have been allowed. The Petitioners, who are
plaintiffs, have approached this Court challenging these
orders.
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2. I have heard Advocate Shri Kilor for the
Petitioners and Advocate Shri Khapre for respondents.
Both of them suggested for final decision at admission
stage itself. On 21/12/2003 this court while issuing
notice made it clear that matters may be disposed of
finally at admission stage only. Accordingly both the sides
also placed their written notes of argument along with
Xerox copies of citations for consideration of this court.
After going through said written notes of arguments, it
was found that Advocate Khapre for respondents made
statement in his written notes that all the suits between
various parties in relation to suit property are
consolidated. There are total 5 suits in relation to very
same property. In view of this, the issue was placed
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before petitioner and his Counsel Shri Kilor took time to
verify the position. Advocate Shri Khapre for respondents
also took time to ascertain factual position. On
9/12/2005 both the Advocates stated that suits are
consolidated and evidence is being recorded only in one
matter.
3. Civil Suit No. 4 of 1986 is filed by petitioner
Totaram while Civic Suit No. 6 of 1986 is filed by
petitioner Sitaram against Rupabai for specific
performance of contract. In Civic Suit No. 4 of 1986
petitioner claims to have entered into an agreement for
sale on 6/1/1983 with her for purchase of 1H 01R out of
survey No. 23/3 while the other petitioner claims to have
entered into similar transaction for remaining 1H 01R
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from same survey number on same date with Rupabai.
Amrut Khatri & Yamunabai Khatri are stated to be
relatives of said Rupabai and they are defendants No. 2
and 3 in both the suits. It is contended that they
deliberately in collusion with Rupabai obtained sale deed
of this land on 21/2/1983 despite knowledge of their
earlier contract with them. It is further stated that the
defendants in both the suits have set up their relations
who have commenced various litigation in Civil as also
revenue courts. The Petitioners have stated that they
were also placed the possession of Suit fields and
application for appointment of receiver was pending before
Sessions Judge Buldhana. It is to be noted that copies of
plaints in all 5 suits are not produced on record by
parties. Predecessorsintitle of added parties namely
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Ramlal & Sheshlal appears to have filed two suits vide
RCS Nos. 167 of 1983 and 236 of 1986. After death of
Ramlal, the added parties are prosecuting those suits as
plaintiffs. Last respondent Brijlal in both these petitions
claims to have purchased half of suit property from Amrut
Khatri and to be in possession thereof. It appears that
present Petitioners are party defendants in RCS Nos. 167
of 1983 and 236 of 1986. Special Civil Suit No. 16 of
1984 is filed by Rupabai, Amrutrao & Yamunabai
together against Sitaram, Totaram, Ramlal, Sheshlal &
Talathi in person for declaration that alleged agreement
dated 6/1/1983 is obtained by present Petitioners by
fraud and is not binding upon them. The added parties
claim that in 1980 Rupabai inducted Ramlal & Sheshlal
as tenants in said field property and when their
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possession was obstructed, Ramlal & Sheshlal filed RCS
No. 167 of 1983. It is thus apparent that facts giving rise
to this litigation are intermingled and decision in any Suit
is likely to affect the other Suit. The landowner Rupabai
with Amrutrao & Yamunabai appear to be party in all
cases. The order of consolidation passed by court below
therefore is just and proper and nobody has made any
grievance against it. Accordingly all the suits are now
before the same court.
4. In AIR 2004 S.C.1687 Chitivalasa Jute Mills.,
M/s. v. M/s. Jaypee Rewa Cement, the Hon'ble Apex
Court has observed about consolidation as under:
"12. The two suits ought not to be tried
separately. Once the suit at Rewa has
reached the Court at Visakhapatnam, the two
suits shall be consolidated for the purpose of
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trial and decision. The trial Court may frame
consolidated issues. The Code of Civil
Procedure does not specifically speak of
consolidation of suits but the same can be
done under the inherent powers of the Court
flowing from Section 151 of the CPC. Unless
specifically prohibited, the Civil Court has
inherent power to make such orders as may
be necessary for the ends of justice or to
prevent abuse of the process of the Court.
Consolidation of suits is ordered for meeting
the ends of justice as it saves the parties from
multiplicity of proceedings, delay and
expenses. Complete or even substantial and
sufficient similarity of the issues arising for
decision in two suits enables the two suits
being consolidated for trial and decision. 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
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different trials. The evidence having been
recorded, common arguments need be
addressed followed by one common judgment.
However, as the suits are two, the Court may,
based on the common judgment, draw two
different decrees or one common decree to be
placed on the record of the two suits. This is
how the trial Court at Visakhapatnam shall
proceed consequent upon this order of
transfer of suit from Rewa to the Court at
Visakhapatnam."
5. In AIR 2002 Raj. 341 between Ganeshdas v.
Ramesh Chandra, learned Single Judge of Rajasthan High
Court has made following observations in paragraph 9, 10
and 12:
"9. In Hans Raj v. Firm Hazarimal Dipa 1959
Raj LW 451, this Court came across a case
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10
where the two suits have been consolidated
by the trial Court; common issues had been
framed and after recording the evidence the
trial Court passed a decree allowing both the
suits. The submission to the effect that the
trial Court had committed an error in
consolidating the suits was rejected by this
Court as the trial Court had the competence
under its inherent jurisdiction to combine two
suits. In case where the parties are the same
anc cause of action is the same, there can be
no difficulty in consolidating the suits in
exercise of inherent powers of the Court
however, whether the suits can be
consolidated must dependent upon facts and
circumstances of a particular case and the
decision of the two suits must rest mainly on
determination of similar question and the
contesting party should also be the same.
Therefore, this Court held that "there must be
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11
sufficient unity or similarity in the matters in
issue in two suits to warrant their
consolidation".
10. In Shambhoo Dayal v. Chandra Kali Devi,
AIR 1964 All 350, the Allahabad High Court
held that in all, suits can be consolidated
provided common question of fact and law are
arising and it will not be a case of misjoinder
of parties.
12. In M/s. Bokaro and Ramgur Ltd. v. The
State of Bihar, AIR 1973 Pat 340 and in Nani
Gopal Bandhyopadhyaya v. Bhola Nath
Bandhopadhyaya, AIR 1973 Pat 437, it has
been held that the Court has inherent
discretionary power to consolidate the suits in
exercise of powers under S. 151, CPC
provided there is sufficient uniformity or
similarity in the matters in issue in the suits
or determination of suits rest mainly on the
common question and it is convenient to try
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12
them as analogous cases. In the former case,
the Hon'ble Patna High Court held as under:
"The question to be considered should also be
as to whether or not the nonconsolidation of
two or more suits is likely to lead apart from
multiplicity of suits, to leaving the door open
for conflicting decisions on the same issue
which may be common to the two or more
suits sought to be consolidated......... the
convenience of the parties and the expenses
in the two suits are subsidiary to the more
important considerations namely, whether it
will avoid multiplicity of suits and eliminate
chances of conflicting decisions on the same
point."
6. This Court also has in 1999 (1) LJ 433 between
Sheela Sohanlal Ghai & Ors. Vs. Snehlata Sohanlal Ghai
& Ors. held as under on the point of consolidation "It
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thus becomes apparent that the object of Section 10 is to
prevent multiplicity of proceedings with regard to the
same subject matter and to avoid contradictory judgments
being given by the same court. In circumstances such as
this, it would be open to the court to exercise its inherent
powers under Section 151 of Civil Procedure Code to pass
appropriate orders to do justice between the parties. The
object of consolidation of suit is to avoid multiplicity of
proceedings and unnecessary delay and protraction of
litigation. The two suits which are the subject matter of
this litigation are between the members of the same
family. Each part of the family in each suit is claiming to
be sole heir and legal representative of the deceased. The
evidence in both the suits would, in all probability, be
common. The witnesses would also be by and large
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common. Therefore, I am of the considered opinion that
the two suits ought to be directed to be consolidated and
tried together." (Para 7).
7. Adv. Kilor has relied upon Anil Kumar Singh vs.
Shivnath Mishra reported at 1995 (3) SCC 147 to contend
that provisions of Order 22 Rule 10 of CPC are not
applicable in the matter. Perusal of paragraph 3 of said
judgment reveals that the respondent therein obtained
interest in the suit property not by assignment or creation
but by a decree of Court. Hence it has been held that said
provision has no application. In relation to Order 1 rule
10 (2), in paragraph 7, Hon'ble Apex Court has stated that
condition precedent in the exercise of said power is
satisfaction of the Court that presence of party to be
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added is necessary to enable it to effectually and
completely adjudicate upon and settle all questions
involved in the suit. It is observed that object of said rule
is to bring on record all the persons who are parties to the
dispute relating to the subject matter so that the dispute
may be determined in their presence and at the same time
without any protraction, inconvenience and avoid
multiplicity of proceedings. In paragraph 10, Hon'ble
Apex Court has held that the person may be added as a
party defendant to the suit though no relief may be
claimed against him provided his presence is necessary for
complete and final decision on the question involved in the
suit. It has been held that as respondent sought to be
added was not party to the agreement of sale, dispute as
to specific performance could be determined even in his
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absence and therefore he was not necessary party. In E.
Ajay Kumar vs. Tulsabai reported at 1973 Mh.L.J. 683,
this High Court has taken similar view and in paragraph 9
observed that a stranger to the agreement and hence to
the controversy who claims to be entitled to the property
as such cannot come before the Court either as necessary
or proper party. Nandlal, respondent No. 2 in this matter
filed application contending that title of Tulsabai was
defective and he had interest in said property. His
application was rejected by trial Court and said rejection
was maintained in this reported judgment. Shamrao vs.
Gurukul Gruhanirman reported at 1995 (1) Mh. L.J. 893,
is another judgment of this High Court wherein similar
view has been taken in paragraph 6 and support has been
taken from E. Ajay Kumar vs. Tulsabai (supra). Applicant
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Shamrao contended that there was subsequent agreement
in his favour and therefore he was necessary/proper party
but his application was rejected by trial Court and said
rejection was maintained by this Court. A.I.R. 1981 Delhi
237 between Raj K. Mehera vs. Anjali is another ruling
cited by learned counsel for Petitioner which takes the
same view and views that if strangers are permitted to be
impeded, it would change the nature of suit.
8. Adv. Khapre has relied upon Herberstons Ltd.
vs. Kishore Rajaram reported at 2000 (3) Mh. L.J. 550, to
state that where party is absolutely necessary such person
can be joined against the wish of plaintiff. The intervenors
in that matter had filed a Civil suit before Calcutta High
Court and their contention was on account of intergroup
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rivalry amongst the parties, they would like to have their
say in the matter before Bombay High Court also. Their
prayer for intervention was rejected holding that they were
neither necessary nor proper parties. While so doing, in
paragraph 8, the above observations have been made. In
Geeta vs. Vijaycharan reported at 2000 (4) Mh. L.J. 556,
the dispute was about dealership and licence of kerosene
which came to be transferred in the name of applicant
after death of her husband. Nonapplicant No. 4 was
earlier given power of attorney to facilitate said business
but it came to be revoked. She also filed a suit for
declaration and permanent injunction against him but it
was withdrawn. Later on nonapplicant No. 4 filed a suit
against Indian Oil Corporation authorities only for
declaration in respect of dealership and for grant of
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mandatory injunction to supply kerosene to him.
Applicant was held to be necessary party to this dispute
and this High Court set aside the order of trial Court
rejecting her application for impleading her as party. In
paragraph 31 this Court has held that under Order 22
rule 10 the Court can add a party found to be necessary
to effectively and completely adjudicate upon and settle all
questions involved in the suit. In 2001 (3) Mh. L.J. 288
between Adam A. Sorathia vs Municipal Corporation of
Greater Bombay, issue was about removal of
unauthorised construction and it has been held that
landlords have directed substantial interest. Perusal of
paragraph 17 shows that it was held that landlord would
be better person to throw light on the controversy.
Learned counsel for respondents has also relied upon
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judgment between Gram Panchayat Garhi vs. Dharambir
and others reported at A.I.R. 1998 P&H 165, wherein
owner of adjoining land was held to be necessary party
because of his contention that he was the owner of portion
occupied by defendant and had entered into an agreement
to sale the same to the defendant though actual sale was
not executed. The defendant in his written statement
admitted said contention. While holding this, the Hon'ble
High Court held that the rule "dominius litus" is not
without exception. Khemchand vs. Vishnu, reported at
A.I.R. 1983 SC 124 is also cited by him to contend that
Order 22 rule 10 recognises the right of transferee to be
impeded as party despite section 52 of Transfer of
Property Act. Observations in paragraph 6 of this
judgment show that Hon'ble Apex Court found that
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position of such person is somewhat similar to the
position of a heir or legatee of a party who dies during the
pendency of a suit or proceeding. It is observed that they
can participate in execution proceedings even though their
names may not have been shown in the decree,
preliminary or final and hence, if they apply to the court
to be impeded as parties they cannot be turned out. A.I.R.
2001 SC 2552 (Dhurandhar Prasad vs. Jai Prakash
University) has been cited to show that a person who
acquires such interest subsequently during pendency of
suit may apply for leave to Court under Order 22 rule 10
and the person who ceases to have interest in the property
may lose interest in the litigation. Such person may not
even effectively defend it.
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9. The above case law, therefore, shows that in
appropriate cases the Court can add a party against the
wishes of plaintiff, if it finds that presence of that party is
essential for complete, effective decision of controversy
with a view to avoid further litigation between the parties.
From the facts of present matter stated above, it is
apparent that in view of the nature of controversy and the
allegations and counter allegations between parties the
order of consolidation is already passed and it has become
final. The parties are disputing the role of original owner
Rupabai and evidence in this respect as also evidence
about the possession of suit property is bound to be
common. Property involved and role played by Rupabai,
Amrut & Yamunabai is to be scrutinised in all matters.
The decree ultimately passed must be capable of being
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smoothly executed without any obstruction by the other
claimants. Thus object behind addition of parties and
consolidation is advanced by the impugned order. Object
of consolidation of suits to avoid multiplicity of
proceedings and unnecessary delay and protraction of
litigation is achieved in this matter. In circumstances, as
the suit is not only for specific performance and other
allegations made against present petitioners are also
required to be answered, I do not find anything wrong in
the exercise of discretion by Court below. After examining
the facts, Court has found it proper to allow the parties to
be added and by this approach of learned trial Court the
controversy can be settled finally, more effectively and
once for all. I have perused the cases/citations placed on
record by both the sides. Normally, in suit for specific
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performance strangers are not allowed to be added as
parties. However, here the predecessorintitle of said
strangers had already filed suit against petitioners in
relation to very same property. Not only this, petitioners
are last to file their suits. Dominus litus is not the rule
without exception. Hence, in the facts and circumstances
of present case I am not inclined to interfere in the matter
in exercise of writ jurisdiction.
10. Writ petitions are accordingly dismissed with no
order is to costs.
*
*dragon.
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