Charan Singh and Others v. Vimla Devi and Others

(2015-16), Smt. Vimla devi and Others Vs. Charan Singh and Others the court of Assistant Collector/Sub Divisional Magistrate, Bazpur, District Udham Singh Nagar (“the case”) seeking cancellation of two sale deeds allegedly executed by the husband of the respondent no.4 and the father of the respondent nos. 5 and 6, Mr. Bechan Singh. They also sought the relief of possession as well as correction of the entry in the revenue record. 2 The suit proceeded when an application under Order IV-A CPC was filed in the year 2023. It has been decided by the impugned order.

4. The petitioners, who are the opposite party nos. 1, 2 and 3, in the case, also filed Suit No.22/09 of the year 2023, Charan Singh and Others Vs. State and Others, in the court of Assistant Collector I, Deputy Collector, Gadarpur Camp, Bazpur, District Udham Singh Nagar (“the second case”) seeking declaration of their rights as well as some other related reliefs. It may be noted that the property in dispute in the case and in the second case is one and the same.

5. After hearing on the application under Order IV-A CPC, by the impugned order, the court had held that the case has been directed to be decided expeditiously within 12 weeks by the order of the Board of Revenue, Circuit Court, Nainital, by its order dated

28.01.2025.

6. It has also been observed in the impugned order that the case has already proceeded to the stage of trial at a very advanced stage. Plaintiffs’ evidence, in the case, has been concluded. Therefore, it was held that it is not in the interest of justice to consolidate the case and the second case.

7. Learned Senior Counsel appearing for the petitioners would submit that in the impugned order, reference to Order IV-A CPC has not been made, and merely based on some case laws that were passed under Section 10 of the CPC, the order has been passed; if such an approach is adopted, it would be giving a go by to the provisions of Order IV-A CPC. He would also submit that if both the cases are consolidated, it would be an act of the Court, which will not prejudice any of the parties. Therefore, it is argued that the 3 order is not in accordance with law. The case and the second case need to be consolidated and the impugned order set aside.

8. On the other hand, learned counsel for the respondent nos. 1 to 3 would submit that the case has a long history. The petitioners have tried at every level to delay the proceedings. Initially, Original Suit No. 70 of 2009 (“the suit”) was filed by the respondent nos. 1, 2 and 3 in a civil court, wherein, the petitioners did raise objection with regard to the subject matter jurisdiction of the civil court. This issue was raised up to the Hon’ble Supreme Court and it was held that the Civil Court has no jurisdiction to decide the suit. Thereafter, the petitioners filed the case in the year

2015. In the case, the petitioners did file the application for rejection of plaint under Order 7 Rule 11 of the CPC on 06.08.2019 and 07.08.2019, both of which were rejected on 06.08.2019 and

30.11.2021, respectively.

9. It is submitted by learned counsel for the respondent nos. 1 to 3 that the order dated 30.11.2021, passed in the case, was challenged by the petitioners in a revision, which was finally rejected on 22.08.2022. The petitioner did file a writ petition challenging order dated 22.08.2022, which was also rejected on

19.11.2022. Thereafter, the second case was filed by the petitioner on 08.02.2023, in which, on 27.05.2023, an application under Order IV-A CPC was filed, to which the respondent nos. 1, 2 and 3 had also filed their objections on 05.08.2023.

10. It is submitted that on 03.11.2024, the petitioners did file the third application under Order 7 Rule 11, which was rejected on

07.12.2024, and its revision was dismissed on 28.01.2025. Thereafter, the application under Order IV-A CPC was heard and decided. 4

11. Learned counsel for the respondent nos. 1 to 3 would also submit that the provisions of Order IV-A CPC are made so as to avoid multiplicity of a suit. A sound discretion is to be exercised by the court to ensure that it would be expedient in the interest of justice if the cases are consolidated. It is argued that, in fact, in the instant matter, the case has proceeded at a very advanced stage. The plaintiffs’ evidence is already over; The petitioners have given a list of 22 witnesses in their defence, and, thereafter, they had pressed the application under Order IV-A CPC. It is submitted that the petitioners have been taking divergent pleas. In the case where they are the opposite parties, they had taken the plea that they were the bona fide purchaser of the property in dispute. But now, they have filed the second case on the ground of adverse possession, which is diagonally opposite. Therefore, it is argued that the discretion that has been exercised by the court below is sound. It does not warrant any interference.

12. In fact, the inter play of Section 10 of the CPC and Order IV-A CPC need little deliberation in the instant case. Section 10 CPC is as follows:- “10. Stay of suit.—No Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other Court in India have jurisdiction to grant the relief claimed, or in any Court beyond the limits of India established or continued by the Central Government 3 and having like jurisdiction, or before the Supreme Court. Explanation.—The pendency of a suit in a foreign Court does not preclude the Courts in India from trying a suit founded on the same cause of action.”

13. Consolidation of cases is permissible under Order IV-A CPC. It reads as follows:- “ORDER IV-A CONSOLIDATION OF CASES

1. Consolidation of suits and proceedings— When two or more suits or proceedings are pending in the same court, and the court 5 is of opinion that it is expedient in the interest of justice, it mayby order direct their joint trial, whereupon all such suits and proceedings may be decided upon the evidence in all or any such suits or proceedings.

14. The Order IV-A CPC does not lay down any criteria or factors that may be considered while consolidating the cases. Unlike Section 10 CPC, which lays down the parameters under which the proceedings may be stayed, which are matter and issues being directly or substantially issued between the same parties, etc.

15. Under Order IV-A CPC, undoubtedly the Court has to exercise its jurisdiction and form an opinion before consolidation of the cases, and the opinion should be that it is expedient in the interest of justice to hold a joint trial. Once joint trial is ordered, all such suits that are consolidated and proceedings may be decided upon the evidence in all or any such suits or proceedings. It has definitely a purpose behind it. If similar nature of cases between same parties are pending, instead of recording evidence in multiple cases, if by recording evidence in one case, such cases may be decided, perhaps, the provisions of Order IV-A CPC may be invoked. But then, stages have its own importance. The purpose is expeditious disposal of the cases.

16. Section 10 CPC somehow incorporates the provisions that if the matter in issue is directly and substantially and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title, the subsequent suit may not proceed. In all cases, where the provisions of Section 10 CPC may be applicable, consolidation may not be ordered. Essentially the essence would be the object to be achieved to save the Court’s time so as to use the 6 evidence recorded in one case in multiple cases. And as stated, Stages has its own importance.

17. The history of the case and the second case in the instant matter has already been elaborated hereinabove. The case in which the impugned order has been passed was filed in the year 2015. It is admitted at the Bar that the first witness was recorded in the case on 16.05.2023. It is almost after 8 years, when the second case was instituted. It is thereafter, when the application under Order IV-A CPC was filed by the petitioners. Today, it is admitted that the plaintiffs’ evidence has already been concluded in the case.

18. Learned Senior Counsel appearing for the petitioners would submit that out of 22 witnesses listed, three witnesses have been discharged, 16 witnesses have been examined and three witnesses are yet to be examined.

19. It means that the case has proceeded at a substantial distance, whereas, the second case is yet to begin.

20. Having considered, this Court is of the view that the court below has rightly concluded that it is not a case in which the provisions of Order IV-A CPC may be invoked, and while observing it, the court below has rightly rejected the application. Therefore, this Court does not see any reason to make any interference. Accordingly, the writ petition deserves to be dismissed at the stage of admission itself.

21. The writ petition is dismissed in limine. Ravi Bisht (Ravindra Maithani, J.)

28.03.2025