Final Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
ORDER IN NOTICE OF MOTION NO. 35 OF 2018
CNR MHCC010000572018
IN
L.C.SUIT NO. 607 OF 2015
CNR MHCCO10137092014
Mr. Gautam Shamrao Suman )...Plaintiff.
V/s.
Municipal Corporation of Greater
Mumbai. )...Defendant.
CORAM : HIS HONOUR JUDGE
SHRI. KISHORE M.JAISWAL
(C.R. NO.08)
DATE : 08/01/2018.
Ld. Advocate Snehal Marathe for the plaintiff
Ld. Advocate Mr Giri for defendant/MCGM
ORAL ORDER
This notice of motion is taken out by the plaintiff for
clubbing and trying the suits no.605/15, 606/15 and 607/15 by
consolidating the same. This notice of motion is supported by an
affidavit executed by the plaintiff Gautam Suman. The defendant/
MCGM has strongly opposed for consolidation of the suit.
2. Heard both the sides.
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3. Admittedly, the MCGM has issued three different notices in
the name of three different persons for three different structures. There
is no doubt about the fact that these three plaintiffs are related to each
other and the notice structure is also adjacent. However in the case in
hand in in all these three suits after considering the reply filed by the
plaintiffs and the documents, the concerned designated officer has
passed three different speaking orders. In all these three suits, already
the issues were framed and moreso, in all these three suits the plaintiffs
therein has filed their separate affidavit in lieu of examination in chief.
The case as appears from the roznana is for admission and denial /
marking of documents and cross examination of the plaintiffs witness.
4. It is at this stage that present notice of motion is taken out
for consolidation of the suit. The learned advocate for the plaintiffs
strenuously urged before me that to avoid the judicial time and as in all
these cases documents are common, therefore suit no. 605/15, 606/15
and 607 of 15 be consolidated. She while arguing all the aspect placed,
reliance on the case Zakinaben and others Vs. Babubhai Alimohmad
Kapadia and others AIR 1999 Gujarat 118 wherein it was held that “
Generally the suits and proceedings are consolidated under Section 151,
C.P.C. in exercise of inherent powers, Section 151, C.P.C. nowhere
provides that consolidation orders can be passed only with the consent
of the other side, viz, opposite party. Consolidation of the two suits can
be ordered provided it is necessary for the ends of justice. If the two
suits are consolidated and the evidence is to be recorded in the leading
suit the consent of the other side is hardly required for reading such
evidence while deciding the two suits. When the two suits are filed, on
some of the relief claimed, the cause of action is bound to differ.
However, only on this ground the prayer for consolidation cannot be
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refused. The words “in the ends of justice” used in Section 151, C.P.C.
and further words “to prevent abuse of the process of the Court” in the
said section mean that if it is desirable in the interest of justice to
consolidate the suits and it is further desirable to prevent abuse of the
process of the Court order for consolidation can be passed. Abuse of the
process of the Court can be prevented by not compelling the parties to
adduce the same or similar evidence in the two suits twice. It cannot be
said that if the suits are consolidated the question of limitation raised by
the defendants will suffer. If the defendants have raised the plea of
limitation or can raise the said plea, such raising of plea will never be
barred simply by order for consolidation of the two suits”.
On bare perusal of the aforesaid rulling it is aptly clear that
there is no specific provisions in the Civil Procedure Code for
consolidating or amalgamation of the suits and ultimately for that
Court has to exercise inherent powers as envisaged under section 151 of
the Civil Procedure Code. In the present case, MCGM has not consented
for consolidation. Moreso, the issues framed in the three different suits,
specifically issue no.3 which is with regard to challenge of three
different notices and three different speaking orders. Already the
plaintiffs has filed there separate affidavits of examination in chief
along with compilation of the documents. At this stage, I am not
inclined to considered for consolidation of suit as the evidence has
already been lead by the respective plaintiffs. As the stage of the
present case is for marking of documents and cross examination, at this
stage, the aforesaid rulling is not applicable as the evidence of the
plaintiffs are separate and different. .
5. The learned advocate for plaintiffs have also placed
reliance in the case of Harinarain Choudhary and others Vs. Ram
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Asish Singh and other ;AIR 1957 Patna 124 wherein it was held that
“ Court has inherent power ex debito justitiae to consolidate suits,
where it is in the ends of justice to do so to avoid needless expense and
inconvenience to parties. In deciding whether two or more suits should
be consolidated or not, the whole question is whether or not, in the long
run, it will be expeditious and advantageous to all concerned to have
the two suits tried together as analogous cases. 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
inherent power of Court under S.151 of the Code of Civil Procedure to
consolidate suits is exercisable even without the consent of parties. The
convenience of the parties in the conduct of litigation is certainly a
relevant consideration, and it is, perhaps, not too much to say that it is
the basis of nearly all statutory jurisdiction on the civil side”. There is
no doubt that convenience of the parties in the conduct of litigation are
relevant consideration. However in the case in hand as the notice
structure belongs to three different persons, may that they are related
to each other, however the notice structure and the reasons for their
unauthorization are being different, at this stage this Court cannot
exercise the inherent powers to consolidate these suits as already the
evidence is being filed by all the three plaintiffs in the three different
suits.
6. Learned advocate for plaintiff also placed reliance in the
case of Rosamma Joseph. Vs. P.C. Sebastian AIR 1996 Kerala 113;
wherein it was held that “ the involvement of common question of law
and facts is not the only ground authorising the transfer of suits under
S.24. It is only illustrative and not exhaustive. This is para mountly a
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matter involving the satisfaction of the Court which exercises the
power. If the facts of the suits sought to be tried together are
intertwined with cause of action in each suits the transfer of suit may
not be refused provided the parties and subjectmatter of the suits are
one and the same. When the Court feels that facts intertwined with the
different causes of action are separated and suits tried independently
would result in conflicting decisions, it can allow the transfer and joint
trial. Thus where the litigating parties in both the suits were one and
the same and the subjectmatter involved in both the suits was two shop
rooms, thereby apart from the common nature, facts being intertwined
and overlapped, the possibility of conflicting decisions if the suits were
tried separately could not be totally ruled out, transfer and joint trial
was hence ordered ”.
The aforesaid rulling is not applicable, for the simple
reasons it speaks for joint trial wherein in the case in hand, the trial is
already commenced and issues were already framed and the plaintiffs
have filed their respective affidavit of evidence. At the most, all these
three suits for the purpose of convenience in future will be kept as for
as possible on same date. Hence I pass the following order.
ORDER
1. Notice of motion no. 35/18 stands rejected.
(Kishore M. Jaiswal )
Asstt. Sessions Judge,
City Civil & Sessions Court,
Gr.Mumbai.
Date:08/01/2018.
Dictated on : 08/01/2018.
Transcribed on : 08/01/2018.
Signed on : 08/01/2018
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“Certified to be True And Correct copy of the Original.
Signed Judgment/Order.”
Upload Date And Time
9/01/2018 at 3.05 pm.
Name of Stenographer
(Mrs. V.V.Mhatre)
Name of the Judge (With Court
room No.)
H.H.J Shri Kishore M. Jaiswal
(C.R. No.08)
Date of Pronouncement of
JUDGMENT / ORDER
08/01/2018
JUDGMENT / ORDER signed by
P.O.on
08/01/2018
JUDGMENT / ORDER uploaded on 09/01/2018
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