SHANTHI Vs. M.ASHOK KUMAR

JUDGEMENT

(1.) 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 Sec. 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 dtd. 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 Sec. 24 of CPC seeking transfer of the ejectment suit filed by the first respondent. The said suit is transferred to the Court 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. 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 Cement,(2004) 3 SCC 85. 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 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 Kumar Gupta and others ,(2005) 12 SCC 505.and in the case of Balbir Singh Wasu .vs. Lakhbir Singh and others,(2005) 12 SCC 503