Karnataka High Court
B.S. Bhagavan Singh And Others vs Smt. Sharada Bai on 23 February, 1989
Equivalent citations: AIR1990KANT222, AIR 1990 KARNATAKA 222
ORDER
1. These two petitions are clubbed together and disposed of by the following order at the stage of admission after notice.
2. The facts which are required to be stated are as follows :-- One Sharada Bai instituted 0. S. No. 24 of 1982 in the court of the Munsiff at Sira seeking declaration of title to suit schedule properties against the revision petitioners who are defendants in the said suit. Thereafter, one Nagaraj, son of Khem Singh filed 0. S. No. 44 of 1987 impleading Sharada Bai, plaintiff in O.S.No. 24 of 1982 and the defendants therein as defendants seeking declaration of his title to the same suit schedule property, namely the suit schedule property of O. S. No. 24 of 1982.
3. Sharada Bai, plaintiff in O. S.No. 24 of 1982, made an application in LA. 15 in that suit as well as I.A. II in O.S.No. 44 of 1987 seeking an order of the court clubbing the two suits together and recording common evidence and disposing of the same in accordance with law. They have come to be allowed by a common order passed which is questioned in these revision petitions by the defendants in O.S.No. 24 of 1982 who are also the defendants in O.S.No. 44 of 1987.
4. It is submitted that O.S.No. 24 of 1982 is at an advanced stage of hearing in as much as the plaintiff has closed her case for evidence and the defendants have also led their evidence. The effect of clubbing the two cases together would be that the plaintiff in the latter suit will insist upon his right to cross-examine all witnesses who have already been examined. That would undoubtedly lead to confusion and more delay. That cannot be denied. But the question is when two or more suits are liable to be clubbed together for convenience and just disposal, is it because the parties are common or is it because the subject-matter of the suit is common or is it because the cause of action from which the suits have arisen are common? It is possible in a given set of cases the said factors may be present and in some other given cases, only one or the other factors may be present. On the facts stated, Sharada Bai never impleaded Nagaraj as the defendant who could question her title in 0. S. No. 24 of 1982. Therefore, in that suit, she disclosed no cause of action against Nagaraj but only against the present revision petitioners who are arrayed as defendants in that suit if that suit does not disclose any cause of action against Nagaraj. Merely because Nagaraj has disclosed a cause of action not only against Sharada Bai but also against the defendants in his latter suit, it cannot be said that he should have his suit adjudicated along with the cause of action disclosed by Sharada Bai. He has to lead independent evidence to prove his title as he is the plaintiff in O. S. No. 44 of 1987. He cannot depend upon either the weakness of the case of the plaintiff in O. S. No. 24 of 19.82 or on the weakness of the defence of the defendants in O. S. No. 24 of 1982 to substantiate his title.
5. In that view of the matter, the trial court was clearly in error in clubbing the two cases together for disposal. When the burden is entirely on two different persons to establish their title, question of leading common evidence in such cases does not arise.
6. The trial court was clearly in error and therefore the order under revision is liable to be set aside and it is accordingly set aside with a direction that the two suits must be proceeded with separately.
Revision petitions are allowed.
7. Revision allowed.