Smt. Ram Pyari Bhatia & Ors. v. Smt. Raj Kumari alias Raj Bala & Anr.

CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr. Kunal Dawar, Advocate for the petitioners. Mr. Lokesh Sinhal, Advocate for the respondents. Kanwaljit Singh Ahluwalia, J. (Oral) From the loins of Hukam Chand and the womb of Tirthi Bai, three sons, namely Jagan Nath alias Jagan Lal, Som Nath Bhatia, Mangal Sen Bhatia and two daughters namely Ram Piari and Santosh were born. Hukam Chand died in the year 1996, whereas Tirthi Bai died in the month of November 2001. A dispute arose regarding the estate of Hukam Chand and Tirthi Bai. Their son Jagan Nath alias Jagan Lal predeceased them on 11.7.1996. His widow and daughter, respondents to the present revision petition, filed a suit for partition and also prayed for possession of the suit property. It was averred in the suit that they have succeeded to 1/5th share of the estate and thus, they are entitled to partition and possession. A written statement was filed by brothers of Civil Revision No. 250 of 2010 2 husband of Raj Kumari alias Raj Bala, namely Som Nath Bhatia and Mangal Sen Bhatia that the suit property was self acquired property of late Tirthi Bai and she had executed a will in their favour. Before the issues could be framed in the suit, another suit was filed by the widow and daughter of Jagan Nath alias Jagan Lal against Som Nath Bhatia and Mangal Sen Bhatia, seeking declaration to the effect that the will, projected by brothers of the husband of Raj Kumari, is void, unjust and unlawful. At that stage, an application under Section 10 CPC (Annexure P2) was filed by Som Nath Bhatia and Mangal Sen Bhatia that proceedings arising out of the subsequent suit be stayed. The trial Court, after hearing the parties, disposed of the application, by observing as under:- “...Therefore, I am of the opinion that both these cases are consolidated and hereinafter civil suit No. 681 dated 10.9.05 titled as Raj Kumari and Sujata Vs. Ram Pyari and Others will proceed as the main suit and the evidence recorded in that suit will be read as evidence in the civil suit No. 794 dated

14.10.05 titled as Raj Kumari & Others Vs. Som Nath & Others. Accordingly, the application for consolidation of the two cases is allowed and the two suits are ordered to be consolidated in the manner stated above.

4. So far as the application under Section 10 CPC is concerned, it is true that the matter directly and substantially in issue in both the suits are the Civil Revision No. 250 of 2010 3 same, parties are the same, subject matter is the same, but when both these suits are consolidated and the former suit No. 681 dated 10.9.05 titled as Raj Kumari Vs. Ram Pyari has been proceeded on as the main suit, there does not remain any necessity to stay the subsequent suit and hence, the application under Section 10 CPC is dismissed”. The above said decision of the trial Court has been assailed in the present revision petition. Learned counsel for the petitioners has relied upon a judgment rendered in Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal AIR 1962 Supreme Court 527(1) to contend that the provisions of Section 10 CPC are clear, definite and mandatory. The Court, in which a subsequent suit has been filed, is prohibited from the proceeding with the trial of the suit in certain specified circumstances. Learned counsel further contends that where there is a special provision, as envisaged under Section 10 CPC, the Court is barred from invoking inherent jurisdiction under Section 151 CPC. A further reliance has been placed upon a judgment rendered in Bihar Solvent Extraction Co. and Others v. Bihar State Forest Development Corporation Ltd. 1998 AIR (Patna) 111, C.L. Tandon, G.S. v. Prem Pal Singh Rawat and Others AIR 1978 Delhi 221 to say that where the issues are directly and substantially similar then the subsequent suit ought to be stayed. Learned counsel for the respondents, to negate the arguments advanced by learned counsel for the petitioners, has cited M/s Gupte Civil Revision No. 250 of 2010 4 Cardiac Care Centre and Hospital v. Olympic Pharma Care Pvt. Ltd. 2004(3) Recent Civil Reports 18 wherein it was held as under:- “...4. It has not been disputed at the Bar that the two suits arise out of the same transaction. Cause of action of any party arrayed as plaintiff would be its defence in the suit where it is arrayed as defendant. Though there are two plaintiffs and two defendants in the suit at Nashik while there is only one plaintiff and one defendant in the suit at Delhi but there is substantial identity of the parties in the two suits. The issues arising for decision would necessarily be the same. Only one of the two suit can be decreed. The decree in one suit in favour of the plaintiff in that suit would entail the dismissal of the other suit. It cannot, therefore, be denied that the two suits deserve to be heard and tried in one Court. That would avoid the possibility of any conflicting decrees coming into existence. And certainly the duplication of evidence, oral and documentary both, would be avoided. The parties and the Courts would save their time and energy which would needlessly be wasted twice over”. A further reliance has been placed upon the judgments rendered in Kamla Wati v. Kharaiti Lal 1993(1) Recent Civil Reports 461, Navin Pal Kaur v. Raja Ram and Another 1996(2) R.R.R. 231, Gurmukh Singh v. State Bank of India and Others 1990 ISJ Civil Revision No. 250 of 2010 5 (Banking) 434 to say that where on the facts and circumstances and convenience of the parties, suit is required to be consolidated, the Court can pass such orders. Therefore, this Court has to take into consideration the facts and circumstances of the present case. In both the suits, the property involved is one. The issue is regarding succession of the legal representatives of Hukam Chand and Tirthi Bai. Som Nath Bhatia and Mangal Sen Bhatia, in the first suit, relied upon the will to the exclusion of others. Therefore, in the subsequent suit, rightly the daughters of Hukam Chand and Tirthi Bai were not impleaded as defendants. In the first suit, partition for all the children of Hukam Chand and Tirthi Bai was sought. Therefore, the approach adopted by the trial Court is to be appreciated. Consolidation of the suits and the procedure devised will not only save the parties from unnecessary litigation, but will also save time and energy of the Court. Furthermore, in the judgments relied by learned counsel for the petitioners, two suits were pending in two different cities, whereas in the present case both the suits are instituted in the same Court. This will be another consideration to consolidate the suits for convenience to all and for larger good. Hence, there is no merit in the present revision petition and the same is hereby dismissed. (Kanwaljit Singh Ahluwalia) Judge July 12, 2010 “DK”