Final Order 1

Order Details: Notice of Motion
Pdf Text: :1: N.M. No.2239/2018 in Suit No.9779/1982
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO. 2239 OF 2018
CNR NO.: MHCC01-007240-2018
SUIT NO. 9779 OF 1982
M/s. S. Raj and Co. ...Plaintiff
Versus
1. Mrs. Pushpa (deleted)
2. Mrs. Deepika A. Menda
(Married daughter of Kishore N. Wadhwa)
3. Mrs. Shilpa S. Rajwaney
(Married daughter of Kishore N. Wadhwa) ...Defendants
Appearances:-
Advocate Mr. Dharmesh Pandya for plaintiff.
Advocate Mr. Rajesh Ghag for the defendants.
CORAM : HER HONOUR JUDGE
SONALI P. AGARWAL
(C.R.NO.14)
DATED : 20th FEBRUARY, 2020.
ORAL ORDER
This is a Notice of Motion filed by defendant praying that this suit
along with another Suit No.7885 of 2000 be consolidated and give
directions to record evidence in both the suits in such manner to avoid
multiplicity of proceedings.
2. Advocate for the defendant argued that parties, issues and reliefs
claimed in both the suits are same, therefore, common evidence should
be recorded in both the suits. Advocate for the plaintiff argued that
evidence in Suit No.9779 1982 i.e. in this suit is over and matter has
-- 1 of 6 --
:2: N.M. No.2239/2018 in Suit No.9779/1982
reached almost at the stage of final argument and another suit No.7885
of 2000 is not at the stage of final argument and also argued that this
application is filed to delay the proceedings.
3. Ld. Advocate for the defendants cited judgment of the Hon’ble
High Court in case of Messers P. T. Anklesaria & Co. v. The Union of
India, reported in AIR 1972 O.C.J 19, in which it is held that, “
where
there is sufficient unity and similarity in the matter in issue in two suits,
one filed by the plaintiff and the other by the defendant against each
other, the Court in exercise of its inherent powers under s. 151 of the
Civil Procedure Code, 1908, ex debito justitiae can order the two suits
to be consolidated. All the issues and reliefs in the two suits need not be
identical, nor is the consent of the parties necessary.” Ld. Advocate for
the defendants cited on the same aspect judgment of the Hon’ble Apex
Court in case of M/s. Chitivalasa Jute Mills vs. M/s. Jaypee Rewa
Cement, reported in AIR 2004 SC 1687, in which it is held that
“the fact
remains that the cause of action alleged in the two plaints refers to the
same period and the same transactions, i.e., the supply of jute bags
between the period 7-1-1992 and 31-12-1993. What is the cause of
action alleged by one party as foundation for the relief prayed for and
the decree sought for in one case is the ground of defence in the other
case. The issues arising for decision would be substantially common.
Almost the same set of oral and documentary evidence would be
needed to be adduced for the purpose of determining the issues of facts
and law arising for decision in the two suits before two different Courts.
Thus, there will be duplication of recording of evidence if separate trials
are held. The two Courts would be writing two judgments. The
possibility that the two Courts may record finding inconsistent with
each other and conflicting decrees may come to be passed cannot be
-- 2 of 6 --
:3: N.M. No.2239/2018 in Suit No.9779/1982
ruled out.” Ld. Advocate for the defendants cited on the same aspect
judgment of the Hon’ble Goa, Daman & Diu Court in case of Damodar
Mangalji & Co. (Pvt.) Ltd., vs. The Oriental Fires and General Insurance
Co. Ltd. and others, reported in AIR 1978 Goa, Daman & Diu 39, in
which it is held that,
“where some of the issues are common and based
on common questions of facts there is possibility of a conflict of
decisions if they are tried in different Courts. In such a case if the
application for transfer and consolidation of two suits is rejected solely
on the ground that the issues in two suits are different, the decision
suffers from a jurisdictional infirmity and hence liable to be interfered
with under S.115.” Ld. Advocate for the defendants cited on the same
aspect judgment of the Hon’ble Apex Court in case of State Bank of
India vs. Ranjan Chemicals Ltd. and another, reported in (2007) 1 SCC
97, in which it is held that,
“a joint trial is ordered when a court finds
that the ordering of such a trial, would avoid separate overlapping
evidence being taken in the two causes but in suit and it will be more
convenient to try them together in the interests of the parties and in the
interests of an effective trial of the causes. This power inheres in the
court as an inherent power. It is not possible to accept the argument
that every time the court transfers a suit to another court or orders a
joint trial, it has to have the consent of the parties. A court has the
power in an appropriate case to transfer a suit for being tried with
another if the circumstances warranted and justified it.” In the case in
hand parties themselves have agreed to lead separate evidence in both
the suits and it is recorded also in the Order dated 2nd March, 2009 of
the Hon’ble S. J. Kathawalla, J. and thereafter plaintiff has acted also of
such submission and lead evidence. Therefore, facts of the cases cited
and in hand are different. Therefore, these case laws are not applicable
to the case in hand. Therefore, this is not a fit case to use powers under
-- 3 of 6 --
:4: N.M. No.2239/2018 in Suit No.9779/1982
Section 151 of the Code of Civil Procedure, 1908 and consolidate both
the suits.
4. Ld. Advocate for the plaintiff cited judgment of the Hon’ble
Jodhpur High Court, Rajasthan in case of Ramanand S/o Shri Ramdas
Agarwal vs. Learned Civil Judge (s.D.) Merta (Raj.) in S.B. Civil Writ
Petition No.5168/2005, in which referred ratio in case of Ganeshdas &
Anr. Vs. Ramesh Chandra & Ors. reported in 2002 (3) WLN 608 in
which it is held that
“if the instant cases are examined in the light of the
above settled legal proposition, it is evident that parties therein are not
the same, documents on the basis of which suits are to be decided are
not the same; they have been executed on different dates; it is not the
case where there is a possibility of having conflicting judgments into
two identical suits; nor it has been shown how the order of not
consolidating all the suits has prejudiced the cause of the applicant;
plaintiffs evidence has already stood concluded in all the suits;
inconvenience has already been caused to the respective plaintiffs as
expenses has already been incurred by them separately; the applicants
did not consider it proper to file the applications for consolidation at
the initial stage for the reasons best known to them; the applications
have been filed at a belated stage only to facilitate him to lead evidence
in all the suits simultaneously. Such a course is not permissible.
Applicant has no bonafide intention as he failed to show any
justification in moving the application in the interest of all the parties
concerned as the application has been filed at a belated stage.” In the
case in hand also parties have specifically agreed that they will lead
separate evidence in both the suits as per order dated 02.03.2009 and
evidence in this suit is over and then at very belated stage this
application to consolidate both the suits is filed. Hence, this case law is
-- 4 of 6 --
:5: N.M. No.2239/2018 in Suit No.9779/1982
applicable to the case in hand.
5. Plaintiff has produced the Order passed on 2nd March 2009 in
both the suits. Clause No.2 of the Order produced is as under:-
CORAM : S. J. KATHAWALLA, J.
DATE : 2ND MARCH, 2009.
“2. Ms. Mamta Sadh, the learned Advocate is appointed as
Commissioner to record the evidence in the above two suits. After
completion of cross-examination of the plaintiffs witnesses, the
Commissioner shall submit her report to the Court. Parties agree that
the evidence in both the suits shall be separate and not common.”
It appears as per such order, both the parties agreed that evidence
in both the suits shall be separate and not common. It appears
thereafter, through Commissioner entire evidence is recorded in Suit
9779 of 1982 whereas in suit No.7885 of 2000 yet evidence of plaintiff
is also not over. It appears in the year 2009, parties agreed to give
separate evidence and thereafter directly when the suit No.9779 of
1982 reached to flag end then this Notice of Motion is filed in the year
2018 with the prayer that “both the suits be consolidated and directions
for recording evidence in both suits”. From these circumstances it
appears that this application is moved only to delay the proceedings.
Therefore, even though most of the parties are same in both suits, in the
circumstances that when the parties have decided in the year 2009 itself
they will lead separate evidence in both the suits and plaintiff in this
suit has acted on such agreed terms and both parties lead evidence then
it will not be proper to again direct parties to lead common evidence on
the ground of common reliefs prayed in both the suits. Hence, it will not
be in the interest of justice to allow this Notice of Motion. Hence,
following order:-
-- 5 of 6 --
:6: N.M. No.2239/2018 in Suit No.9779/1982
ORDER
Notice of Motion No.2239 of 2018 is rejected.
(SONALI P. AGARWAL)
Judge,
Date: 20.02.2020. City Civil Court,
Gr. Bombay.
Dictated on : 20.02.2020
Transcribed on : 20.02.2020
Signed on : 20.02.2020
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
27.02.2020 At 10:27 a.m. Mr. Subhash Sukhdeo Poul
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ Sonali P. Agarwal
(C.R.NO.14)
Date of pronouncement of
Judgment/Order
20.02.2020
Judgment/Order signed by P.O. on 20.02.2020
Judgment/Order uploaded on 27.02.2020
-- 6 of 6 --