Patna High Court
Nani Gopal Bandhyopadhyaya And Ors. vs Bhola Nath Bandhyopadhyaya And Ors. on 28 February, 1973
Equivalent citations: AIR1973PAT437, AIR 1973 PATNA 437
JUDGMENT Madan Mohan Pasad, J.
1. This is an application under Section 24 of the Code of Civil Procedure (hereinafter referred to as 'the Code') for transfer of a case from Bhagalpur to Purnea and with a further prayer for consolidation of that suit with another suit pending in the Court of Purnea,
2. It appears that the opposite party filed Title Suit No. 168 of 1970 in the court of the Subordinate Judge at Purnea for partition of certain ancestral properties; the first petitioner and the first opposite party being brothers. Of the properties mentioned therein, it is said that all the properties are situate in the district of Bhagalpur except one property in Purnea. The defendant-petitioners claim that both the parties are really residents of Bhagalpur. The defence of these petitioners in that suit is that there had been a previous partition already in the year 1954 that a memorandum of partition had been drawn up and signed by various witnesses of Bhagalpur and that a few properties like ancestral house and such other had been purposely kept joint between the parties. It is said that the aforesaid suit is ripe for hearing and. in fact, one witness for the plaintiffs has also been examined.
3. Another suit being Title Suit No. 16 of 1972 has been filed by the petitioners in the court of Subordinate Judge at Bhagalpur for partition of the properties which, according to them, had been left joint between the parties after the previous partition between the brothers which had taken place in the year 1954. Notices have been issued on the defendants in this suit but they have not yet appeared
4. It appears that the petitioners came up to this Court earlier for transfer of the suit pending in the court of the Subordinate Judge of Purnea to the court of the Subordinate Judge at Bha-galpur which was registered as M.J.C. No. 23 of 1972 and was summarily dismissed by this Court on the 24th February 1972. Having thus failed to get the suit of Purnea brought to the court at Bhagalpur, it appears, the present application has been filed for transfer of the suit at, Bhagalpur in which the petitioners are plaintiffs to the court of the Subordinate Judge at Purnea. The petitioners have further prayed, as stated earlier, that this present suit be also transferred to the court of the same Subordinate Judge to be tried analogous with Title Suit No. 168 of 1970.
5. Learned counsel for the petitioners has urged that the parties are common, the defence will be common to both the suits, the issues to be decided substantially will be the same, the evidence to be adduced in the two cases will also be more or less common and in the circumstances aforesaid these suits are fit to be tried together by the same court. Learned counsel for the opposite party has. however, urged that an analogous trial of the two suits will lead to delay in the disposal of the suit in which the opposite party are plaintiffs in view of the stage it has already reached and the present stage of the present suit. It is also said that the opposite party are plaintiffs in Title Suit No. 168 of 1970 aforesaid and, therefore, they should have the right to choose their own forum and unless they consent to the consolidation of the two suits, it ought not to be allowed.
6. I am afraid. I am unable to accept the proposition urged by learned counsel for the opposite party. From the nature of allegations in the two suits and the defence taken up by the present opposite party in one of the two suits, it is quite obvious that the main dispute between the parties would centre round the question as to whether or not there had been a previous partition. The fact that they are two brothers, that they had ancestral properties and that in case there has been no previous partition, a partition would be necessary, are not disputed questions. The parties in both the two suits are the same. It is also' evident from the circumstances of this case that the evidence adduced would be more or less common. Further, it would be advantageous in the long run and even economical for the parties to have the matter tried in a consolidated manner.
7. So far as the question of consolidation is concerned, it is well settled that this Court has inherent power to consolidate suits in certain circumstances, and further that the jurisdiction of this Court to direct consolidation does not depend upon the consent of the parties because if this Court had no jurisdiction, such consent would not clothe it with jurisdiction (See, Qazi Sved Muhammad Afzar v. Mankumar Mahton, ILR 1 Pat 669 = (AIR 1922 Pat 566 (1)). In the case of Harinarain Choudhary v. Ram Asish Singh, AIR 1957 Pat 124 a learned Single Judge of this Court held that where it appears that there is sufficient unity, or similarity in the matter in issue in the suits or that the determination of the suits rests mainly on a common question, it is convenient to have them tried as analogous cases. The principle laid down in the case of Qazi Syed Muhammad Afzar (supra) was reiterated by the learned Judge. To the same effect, there is the decision of another learned Judge of this Court in the case of Ramavtar Prasad v. Satdeo Lal, AIR 1939 Pat 30. I have had the occasion to discuss this question in the case of M/s. Bokaro and Ramgarh Ltd. v. State of Bihar, Civil Revn. No. 992 of 1972 disposed of on 15-2-1973 = (AIR 1973 Pat 340). I have ventured to add one more point to the considerations mentioned in the three reported cases and that is that if the trial of the two suits separately is likely to lead to a conflict of decisions on the same point, that also is a very important consideration which has to be kept in view before deciding the question of consolidation. In view of the aforesaid, I am unable to accept the contention of learned counsel that the suits cannot be consolidated except with consent.
8. In view of what I have stated above, it is quite clear to me that the consolidation of the two suits would result not merely in convenience to the parties and economy but also in the elimination of the chance of conflict in decisions on the same point in the two suits. Learned counsel for the opposite party has, however, conceded that he has no objection to the transfer of the petitioners' suit No. 16 of 1972 from the court at Bhagalpur to the court at Purnea; his only objection being to the consolidation of the two suits. In the circumstances of this case it appears that the trial of the two suits at the same place will be in the interest of the parties.
9. It appears that the provision of law stated in the application is Section 24 of the Code alone. Learned counsel for the petitioners has said that it is merely by inadvertence because it will appear from the prayer portion that a distinct prayer has been made to make the two suits analogous. In order to make this Court exercise its inherent jurisdiction it is not necessary for the litigant to title his petition as such. In the present case the omission is of no importance.
10. I would, accordingly, allow this application and direct transfer of Title Suit No. 16 of 1972 pending in the court of Subordinate Judge at Bhagalpur to the court of the Subordinate Judge at Purnea with a direction to make the two suits analogous and proceed thereafter. Further direction is given to the learned Subordinate Judge to dispose of the two suits within a period of six months. The petitioners have undertaken not to delay the ripening of their suit at Purnea and so have the plaintiffs opposite party undertaken to do their best to make the suit ready. The learned Subordinate Judge will therefore, avoid giving unnecessary adjournment asked for by either parties and dispose of the two suits in the manner and within the time indicated above.
11. This application is allowed but there will be no order for costs.