Karnataka High Court
Smt Shanthi vs Shri M Ashok Kumar on 14 July, 2022
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF JULY, 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
WRIT PETITION NO. 5765 OF 2022(GM-CPC)
BETWEEN:
SMT SHANTHI
D/O LATE MUNISWAMY
W/O MR K VASU
AGED ABOUT 52 YEARS
R/AT NO.84/A, GROUND FLOOR, 2ND MAIN
3RD CROSS, PRAKASHNAGAR
BENGALURU-560021.
...PETITIONER
(BY SRI.ASHOK B PATIL, ADVOCATE)
AND:
1. SHRI M ASHOK KUMAR
S/O LATE R MUNISWAMY
AGED ABOUT 47 YEARS
R/AT NO.84/A, 1ST FLOOR, 2ND MAIN
3RD CROSS, PRAKASHNAGAR
BENGALURU-560021.
2. SHRI M KISHOR KUMAR
S/O LATE R MUNISWAMY
(SINCE DECEASED)
3. SHRI M PONNURAMGAM
S/O LATE R MUNISWAMY
2
AGED ABOUT 68 YEARS
R/AT NO.32, 1ST MAIN
MANJUNATHA LAYOUT, RAMAMURTHY NAGAR
BENGALURU-560016.
4. SARASWATHI
D/O LATE R MUNISWAMY
W/O SHRI CHINNADURAI @ POONGAVANAM
AGED ABOUT 64 YEARS
R/AT NO.991, 1ST B MAIN
MALAIMAHADESHWARA LAYOUT
9TH BLOCK, NAGARABHAVI 2ND STAGE
BENGALURU-560072.
5. LAKSHMI
W/O SHRI GOPAL
D/O LATE R MUNISWAMY
AGED ABOUT 60 YEARS
R/AT NO.776, 'A' BINNY PET
BENGALURU-560023.
...RESPONDENTS
(BY SRI.ARCHANA DESAI, ADVOCATE FOR
SRI.SREENIVASAN K, ADVOCATE)
THIS PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE
THE ORDERS DTD 16.02.2022 VIDE ANNX-L PASSED BY
THE COURT OF 64TH ADDL. CITY CIVIL AND SESSIONS
JUDGE, BENGALURU (CCH-65), DISMISSING IA FOR
CLUBBING IN OS.NO.1402/2017 AND ALLOW THE SAME.
THIS PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 29.06.2022, COMING ON FOR
PRONOUNCEMENT OF ORDERS THIS DAY, THE COURT
MADE THE FOLLOWING:
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ORDER
The captioned writ petition is filed by the plaintiff in O.S.No.7572/2016 questioning the order of the learned Judge rejecting the application filed under Section 151 of CPC seeking to club O.S.No.1402/2017 along with O.S.No.7572/2016.
2. The facts leading to the case are as under:
The petitioner has instituted a suit in O.S.No.7572/2016 for partition and separate possession. The petitioner has also questioned the release deed dated 26.10.2013. The first respondent has filed an ejectment suit in O.S.No.1402/2017 seeking direction against the petitioner herein to handover vacant possession.
The petitioner filed a Miscellaneous petition in Misc.No.73/2021 under Section 24 of CPC seeking transfer of the ejectment suit filed by the first respondent. The said suit is transferred to the Court 4 where the present partition suit is pending consideration. After transfer, the petitioner has sought for clubbing of both the suits on the ground that the subject matter involved in both the suits are one and the same and therefore, it would be necessary to record common evidence and decide both the suits by rendering a common judgment. The learned Judge while rejecting the application was of the view that both the suits are based on different cause of action and the reliefs sought are also different. The learned Judge while rejecting the application has also taken note of the fact that the present petitioner who is arrayed as second petitioner in ejectment suit has succeeded in protracting the proceedings for a considerable period of four years on one pretext or the other. On these set of reasonings, the learned Judge has rejected the application. 5
Hence, the present writ petition is by the petitioner- plaintiff in O.S.No.7572/2016.
3. The learned counsel reiterating the grounds urged in writ petition would vehemently argue and contend that the trial Court erred in not clubbing both the suits having regard to the fact that the parties as well as the subject matter in both the suits are common. Placing reliance on the judgment of the Apex Court rendered in the case of Chitivalasa Jute Mills .vs. Jaypee Rewa Cement1 he would contend that same set of evidence is needed for determining the issues and therefore, to avoid conflicting decrees, the trial Court ought to have consolidated both the suits. Referring to the principles laid down by the Apex Court in the judgment cited supra, he would contend that the learned Judge has not exercised discretion judiciously and therefore, would warrant 1 (2004) 3 SCC 85 6 interference at the hands of this Court. In support of his contention, the learned counsel for the petitioner has also placed reliance on the judgments rendered by the Apex Court in the case of Nirmala Devi .vs. Arun 2 Kumar Gupta and others and in the case of Balbir Singh Wasu .vs. Lakhbir Singh and others3
4. Per contra, learned counsel appearing for the first respondent-plaintiff in ejectment suit supporting the order under challenge would contend that the petitioner under the garb of seeking clubbing of suits is deliberately protracting the hearing of ejectment suit. Referring to the order sheet which is produced on record by the first respondent in both the suits, she would make an attempt in highlighting the conduct of the petitioner in both the suits. Taking this Court through the order sheet of the partition suit, she would point out that P.W.1 who was examined way 2 (2005) 12 SCC 505 3 (2005) 12 SCC 503 7 back in February 2018 did not offer for cross- examination and on 21.2.2019 counsel appearing for the plaintiff filed an application under Section 151 to discard the evidence of P.W.1 and permit to examine plaintiff No.1 as P.W.2. She would further point out that present petitioner who is the first plaintiff in the partition suit and who is examined as P.W.2 has not co-operated and this compelled the Court to discard the evidence of P.W.2 by order dated 2.2.2021. Evidence of present petitioner was discarded way back in February 2021, later it was recalled and the matter is pending for cross-examination of petitioner herein. On 13.8.2021 the present petitioner has again filed an application to permit her for further examination-in- chief. She would also point that in the ejectment suit, the present petitioner has managed to protract the proceedings. The present petitioner who is arrayed as defendant No.2 has failed to lead evidence and 8 evidence is taken as 'Nil' by order dated 23.1.2021. Petitioner has refused to lead evidence on the premise that she has filed an application seeking transfer of ejectment suit. Referring to all these significant details, she would contend that the conduct of the petitioner is found to be grossly unfair. Placing reliance on the judgment rendered by the Co-ordinate Bench of this Court in the case of Chetan Dongare .vs. Kiran Dongare in W.P.No.102325/2015 disposed of on 6.4.2015, she would contend that this Court was not inclined to accept the prayer for clubbing on the ground that the suits are entirely different and the reliefs sought are also not one and the same. She has placed reliance on the judgment rendered by the Apex Court in the case of Aspi Jal and another .vs. Khushroo Rustom Dadyburjor [Civil Appeal No.2908/2013].
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5. Heard the learned counsel for the petitioner and the learned counsel appearing for the first respondent.
6. The petitioner has instituted a partition suit in O.S.No.7572/2016. Petitioner has questioned the registered release deed dated 26.10.2013. The petitioner claims that respondent No.1 who has filed ejectment suit has created a concocted document styled as release deed dated 26.10.2013. Petitioner claims that the said document is obtained by misrepresentation and by playing fraud. The petitioner claims that the suit schedule property is the joint family ancestral property and after the death of her father, she is entitled for her legitimate share in the suit schedule property. While the present first respondent has instituted an ejectment suit in O.S.1402/2017 by specifically contending that the present petitioner who is arrayed as defendant No.2 10 was permitted to stay in the suit schedule property as she requested to allow her to stay for some time. The first respondent has specifically contended that the present petitioner has executed a registered release deed by accepting a sum of Rs.1,00,000/- and therefore, she has no semblance of right over the suit schedule property.
7. In the background of these significant details, the question that requires to be considered is whether clubbing of both the suits is necessary in the present case on hand. The disposal of the partition suit pending in O.S.No.7572/2016 needs considerable time. There is a registered release deed under which petitioner appears to have relinquished her share. The present petitioner has alleged fraud and misrepresentation. Therefore, the question of clubbing both the suits having regard to the facts and circumstances of the case cannot be acceded to. 11
8. Before I further advert to the case on hand, it would be useful for this Court to refer to the judgment rendered by the Apex Court in the case of Prem Lala Nahata and another .vs. Chandi Prasad Sikaria4. The Apex Court in the aforesaid judgment has clearly held that the Court has power to consolidate the suits in appropriate cases. If the dictum laid down by the Apex Court is examined, this Court would find that the main purpose of consolidation is intended to save cost, time and efforts. Therefore, only when the situation warrants and some common question of law and facts arises in two suits, the Court can exercise judicial discretion and may order for consolidation of two suits.
9. The first respondent has filed an ejectment suit. The present petitioner herein has challenged the release deed dated 26.10.2013 by filing a partition 4 (2007) 2 SCC 551 12 suit in O.S.No.7572/2016. Now, if the order sheet is examined, it is quite clear that petitioner is not at all diligently prosecuting the partition suit. Plaintiff No.2 was initially examined as P.W.1 and her evidence has to be discarded as she failed to offer for cross- examination. Thereafter, the present petitioner is examined as P.W.2. Even present petitioner failed to offer for cross-examination and the Court below by order dated 2.2.2021 was compelled to discard even the evidence of present petitioner. Thereafter application is filed and the said order is recalled.
10. Now, in the ejectment suit, the present petitioner who is arrayed as defendant No.2 has succeeded in protracting the hearing. The present petitioner filed a transfer petition which was allowed and the matter is withdrawn and transferred to CCH.65. Even in ejectment suit, the present 13 petitioner's evidence was taken as 'Nil' by order dated 23.1.2021.
11. If all these significant details are taken into consideration, it is clearly evident that the present petitioner is deliberately seeking clubbing of ejectment suit along with partition suit. The ejectment suit is filed by the first respondent based on the registered release deed and therefore, first respondent is entitled to proceed with the suit. In the present case on hand, if clubbing is permitted that would invariably protract the disposal of ejectment suit. This Court is of the view that it is also not desirable to club the ejectment suit with the partition suit. The present petitioner has to succeed in the partition suit provided she is able to prove that the registered release deed is on account of fraud. Unless the release deed is set aside, the first respondent is entitled to seek possession. The clubbing at this juncture would be advantageous to 14 the present petitioner and would cause serious prejudice to respondent No.1. The clubbing application is filed with a malafide intent and the applicaton lacks bonafides. The order sheet also indicates that the conduct of the petitioner is grossly unfair. Therefore, this is not a fit case to order for clubbing of both the suits.
12. Therefore, the order under challenge does not warrant any interference at the hands of this Court. No case is made out.
14. Hence, I pass the following:
ORDER The writ petition is dismissed.
Sd/-
JUDGE *alb/-