Skip to content


Dr. Guru Prasad Mohanty and ors. Vs. Bijoy Kumar Das - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 682 of 1983
Judge
Reported inAIR1984Ori209; 57(1984)CLT477; 1984(I)OLR447
ActsCode of Civil Procedure (CPC) , 1908 - Sections 10 and 151
AppellantDr. Guru Prasad Mohanty and ors.
RespondentBijoy Kumar Das
Appellant AdvocateA. Mukherjee, ;J.P. Choudhury, ;D. Mohanty and ;A.K. Mishra, Advs.
Respondent AdvocateB.H. Mohanty, ;B. Das and ;S.C. Mohanty, Advs.
DispositionRevision dismissed
Cases Referred(P.P. Gupta v. East Asiatic Co. Bombay
Excerpt:
.....1 to 4 had sold the suit properties to these defendants under separate sale deeds. are satisfied came up for consideration. ' from the above, there can be no doubt that the observation of the supreme court clearly indicates that the court has the power to direct the two suits between the same parties where common question arises to be tried together. bombay) wherein the learned judge in well discussed and well reasoned judgment has laid down that section 10 does not go to the root of the jurisdiction of the court trying the second suit but merely lays down a rule of procedure;.....to direct consolidation of the two suits?the two suits in question in the present case are title suit no. 233 of 1931 and title suit no. 149/494 of 1981/1983. the former was filed on 3-10-1981 in the court of the subordinate judge. cuttack and the latter in the court of the first munsif, cuttack on 16-11-1981. by order dated 5-7-1983 of the district judge, cuttack title suit no. 233 of 1981 was transferred to the court of the additional sub-judge, cuttack. again by 12-9-1983 both the suits were transferred to the court of the subordinate judge, cuttack. on 15-4-1982 the petitioners (defendants in the said suit) filed an application under section 10, civil p. c. in title suit no. 149/494 of 1981/83 for stay of the further proceedings of the said suit till disposal of the title.....
Judgment:

D.P. Mohapatra, J.

1. This revision petition is directed against the order dated 1-10-1983 by the Subordinate Judge, Cuttack in Tille Suit No. 149/494 of 1981/1983 rejecting the petitioner's application under Section 10, Civil P. C. The question that arises for consideration is whether in a case where the ingredients of Section 10, Civil P. C. are satisfied, has the Court no jurisdiction to direct consolidation of the two suits?

The two suits in question in the Present case are Title Suit No. 233 of 1931 and Title Suit No. 149/494 of 1981/1983. The former was filed on 3-10-1981 in the Court of the Subordinate Judge. Cuttack and the latter in the Court of the First Munsif, Cuttack on 16-11-1981. By order dated 5-7-1983 of the District Judge, Cuttack Title Suit No. 233 of 1981 was transferred to the Court of the Additional Sub-Judge, Cuttack. Again by 12-9-1983 both the suits were transferred to the Court of the Subordinate Judge, Cuttack. On 15-4-1982 the petitioners (defendants in the said suit) filed an application under Section 10, Civil P. C. in Title Suit No. 149/494 of 1981/83 for stay of the further proceedings of the said suit till disposal of the Title Suit No. 233 of 1981. On the other hand, the opposite party (plaintiff in the suit) filed an application on 27-9-1983 for analogous hearing of the suit with Title Suit No. 233 of 1981. Each party filed objection to the petition filed by the other. The trial Court after hearing the parties on their respective petitions, by his order dated 1-10-1983 rejected the application of the petitioners for stay under Section 10, Civil P. C. and accepted the application filed by the opposite party for analogous hearing of both the suits. This order of the learned Subordinate Judge is impugned in this revision petition.

2. The main contention raised on behalf of the petitioner is that Section 10 Civil P. C. is mandatory in nature and the trial Court having found that the ingredients of the said section are satisfied in this case was bound to pass an order of stay in the terms of the provisions of the said section and the Court had no jurisdiction to direct analogous hearing of the two suits. The contention on behalf of the opposite party on the other hand is that even if the ingredients under Section 10, Civil P. C. are satisfied in this case, it is still open to the trial Court to consolidate the two suits and to direct analogous hearing of the same in the ends of justice.

3. At this stage it will be helpful to give in short the case of the respective parties in the two suits. In Title Suit No. 223 of 1981 Jayadip Mohanty, a minor (petitioner 2) in this revision is the sole plaintiff and the opposite party in this revision is defendant 9 therein. In the said suit the plaintiff prays, inter alia, for a decree for specific performance of the contract executed between 5-4-1976 and 12-4-1976 by defendant Nos. 1 to 4 in his favour and further prays that defendants 5 to 8 and defendants 1 to 4 be directed to execute and register a sale deed in respect of the 'A' Schedule properties in favour of the plaintiff and defendants 5 to 8 within a time fixed by the Court after obtaining permission from the Khasmahal authority and in case defendants 1 to 4 fail to execute and register the sale deed within the time granted by the Court the latter may execute and register a sale deed on behalf of the defendants 1 to 4 after obtaining the necessary permission for a decree for permanent injunction against the defendants 1 to 11 not to interfere with the possession of the plaintiff and for restraining the defendants 1 to 4 not to transfer the property in favour of defendants 5 to 9. The property described in schedule 'A' to the plaint is District-Cuttack, Mouza-Cantomnent, Khata No.335, plot No. 223, Pattadari area A. I 658 decimals, Bungalow Holding No. 717, new No. 849, Ward No. 7, Cuttack Municipality.

The gist of the plaintiff's case as narrated in the plaint is that there was an agreement between the defendants 1 to 4. the owners of the suit property and the plaintiff through his adoptive mother Smt. Sabitri Dei and defendants 5 to 9 that the property will be sold in favour of the plaintiff and defendants 5 to 9. The relationship between the parties is quite close inasmuch as the plaintiff's natural mother Sukruti is the daughter of defendant No. 9 (opposite party). Defendants 5 to 8 are the wife and the other children of defendant 9. In view of the close relationship between the parties a sum of Rs. 20,000/- was paid by the natural father of the plaintiff to defendant 9 to take necessary steps for obtaining this sale deed. A written agreement on a stamp paper for sale of the 'A' Scheduled properties was executed on payment of Rs. 25,000/- to the defendants. Subsequently, due to some misunderstanding between the defendant 9 and the father of the plaintiff the former in collusion with defendants 1 to 4 has been trying to exclude the plaintiff from the deed relating to the purchase of the properties. The plaintiff has further averred in his plaint that the first floor of the house in question is in occupation of defendants 5 to 9 whereas a portion of the ground floor is being occupied by the plaintiff and his natural father and mother.

Defendants 5 to 11 who are the contesting parties, in their written statement admitted that there was a proposal by defendant 9 to purchase the land Benami in the names of his children and also the plaintiff out of sheer love and affection. According to them there was no contractual relationship between the plaintiff and defendants 1 to 4 at any time. They also denied payment of any amount by the natural father or the mother of the plaintiff to them at any time They asserted that difference having arisen between the natural father of the plaintiff and his father-in-law, Bijoy Das (opposite party), the latter did not like to enter into controversy and accordingly defendants 1 to 4 had sold the suit properties to these defendants under separate sale deeds. The defendants further asserted that the house in question had been purchased by defendant 9. Dr. Guru Prasad Mohanty with his wife and the plaintiff were occupying two rooms in the ground floor with the permission of defendant 9. Title Suit No. 149 of 1981 has been filed by defendant 9 for eviction of Dr. Guru Prasad Mohanty from the said premises and the suit is still pending.

4. Title Suit No. 149 of 1981 has been filed by the opposite party as the sole plaintiff against the petitioners. The relief sought in the said suit is for a decree for eviction against the defendants and to put the plaintiff in exclusive possession of the Schedule 'B' Property. Schedule 'B' describes the suit property as all the buildings and structures together with land in Touzi No. 5458, Mouza-Cantonment Bungalow Block, Thana Mangalabag, Zamabandi No, 40, Khata No. 335, Sabik plot No. 223 area A. I. 568 decimals, town and District-Cuttack out of which A0. 290 decimals being the vendor's share together with 1/5th share in the common passage of A0.138 decimals. The averments in the plaint in this suit are substantially the same as narrated in the written statement of defendants 5 to 11 in Title Suit No. 233 of 1981. The filing of the Title Suit No. 233 of 1981 has also been mentioned in the plaint in this suit.

In short, the plaintiff's case is that the defendants who have been occupying the three rooms in the ground floor of the house in question with the permission of the plaintiff have refused to vacate the same even though they have no manner of right, title and interest therein and they have falsely asserted their title through the minor, Jayadeep to the said premises. The written statement filed by the defendants is more or less in the line with the plaint in Title Suit No. 233 of 1981.

5. From the facts narrated above it is clear that the contesting parties in the case in the two suits are the same, the disputed property in Title Suit No. 149 of 1981 is a part of that in Title Suit No. 233 of 1981. The case of the plaintiff in Title Suit No. 233 of 1981 is substantially his defence in Title Suit No. 149 of 1981, and the case of the plaintiff in Title Suit No. 149 of 1981 is his defence in Title Suit No. 233 of 1981.

6. The learned counsel for the petitioners cited several decisions in support of his contention that provisions of Section 10, Civil P. C. are mandatory in character. This principle as such its not in dispute. The question is whether the provisions of Section 10, Civil P. C. denude the Courts of its jurisdiction to follow any other procedure which would serve the ends of justice. Some of the decisions cited are AIR 1972 All 473 (Ratan Singh v. Musaddi Lal), AIR 1981 Guj 110 (Sohal Engineering Works, Bhandup, Bombay v. Rustam Jehangir Vakil Mills Co. Ltd.) AIR 1979 Delhi 118 (Sagar Shamsher Jung Bahadur Rana v. Union of India) and AIR 1976 Goa 48 (Conceicao Filipe Sequeira v. Paulo Francisco Sequeira). In none of these decisions the question whether consolidation of suits can be directed by the Court in a case where the ingredients of Section 10, Civil P. C. are satisfied came up for consideration. Hence, they are not authorities which support the contention advanced on behalf of the petitioners in this case. In fact in the Gujarat case mentioned above the Court laid down that where two suits between the same parties involve common question arising between them the Court has inherent power to direct two suits to be tried together. The Court relied on an observation of the Supreme Court in the case reported in AIR 1962 SC 527 (Manohar Lal Chopra v. Raj Bahadur Rao Raja Seth Hiralal), which is worth quoting here:

'Further, Section 22 of the Code provides for the transfer of a suit to another Court when a suit which could be instituted in any one of two or more Courts is instituted in one of such Courts. In view of the provisions of this Section, it was open to the respondents to apply for the transfer of the suit at Asansol to the Indore Court and, if the suit had been transferred to the Indore Court, the two suits could have been tried together.'

From the above, there can be no doubt that the observation of the Supreme Court clearly indicates that the Court has the power to direct the two suits between the same parties where common question arises to be tried together.

Accepting the contention advanced on behalf of the petitioners would in effect deprive the Court of its jurisdiction to follow any procedure to serve the ends of justice and this may work out injustice between the parties. After all, Section 10, Civil P. C. merely lays down| a procedure and does not vest any substantive right in the parties. The object of the said section is to prevent Courts of concurrent jurisdiction from simultaneously entertaining and adjudicating upon two parallel litigations in respect of the same cause of action the same subject matter and the same relief. The policy of the law is to obviate the possibility of two contradictory verdicts by one and the same Court in respect of the same relief. The object of consolidation of suits is to avoid multiplicity of proceedings and unnecessary delay and protraction of litigation. These objects are not in conflict with the principles of Section 10 of the Civil P.C., but in the aid of the object of the said Section. This principle has been laid down in a decision reported in AIR 1960, All 184 (P.P. Gupta v. East Asiatic Co. Bombay) wherein the learned Judge in well discussed and well reasoned judgment has laid down that Section 10 does not go to the root of the jurisdiction of the Court trying the second suit but merely lays down a rule of procedure; it directs the Court to wait till the decision of the earlier suit; and that the principle of consolidation in no way conflicts with this purpose of Section 10: on the contrary, it preserves and promotes it. Ultimately, the Court comes to hold that the words 'shall not proceed in any suit' in Section 10 Civil P. C. were intended to bar the separate trial of any suit in which the matter in issue was also directly and substantially in issue in a previously instituted suit between the same parties in the same Court or in any other Court. But these words do not apply to the simultaneous hearing of a later and an earlier suit, after consolidation of the two, if the matter in issue in both is directly and substantially the same. The Court went to the extent of saying that any interpretation of Section 10 which takes away the power of the Court to consolidate suits would hinder the policy and purpose of Section 10 itself. I am in respectful agreement with the principles laid down by the Hon'ble Judge in this decision.

In the course of hearing I asked the learned counsel appearing for the petitioners to point out how his clients are prejudiced if the two suits are hear together. No satisfactory reply was forthcoming:

7. In view of the discussion aforesaid, I am unable to persuade myself to accept the contention raised on behalf of the petitioners. Hence, the revision petition is devoid of merit and the same is dismissed but in the circumstances of the case there will be no order for costs. The trial Court is directed to dispose of the two suits expeditiously if possible within two months from the date of receipt of this order.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //