SHAFIQ AHMAD Vs. ADDITIONAL DISTRICT JUDGE, HALDWANI

JUDGEMENT

(1.) BY the present writ petition the petitioners have prayed for a writ of certiorari quashing the order dated 30.1.2006 and 6.3.2006 passed by the respondent no. 1.

(2.) BRIEFLY stated a suit No. 93 of 2005 has been filed by the petitioners for permanent injunction and for a decree of declaration that the defendant is not the owner and having no lawful title of ownership and is also not the landlord of the premises. Another Suit no. 17 of 1992 Anoop Kumar Vs. Haneef Ahmed and others was also pending in the court of Judge, small Causes Court, Haldwani. The suit was filed in the month of September 2005. Both the suits are between the same parties and the subject matter is also the same. The petitioner have filed written statement and challenged the, title and ownership of the plaintiff and further challenged the relationship of landlord and tenant in between the parties. In the written statement the petitioner defendants not only denied the alleged tenancy of late Abdul Hammed, the father of the petitioners had constructed the shop in dispute out of his own funds about 45 -50 years before his death. During the pendency of the suits, the petitioners have filed the application for consolidating both the suits but the same was rejected on 6.3.2006 and a finding was recorded that the S.C.C. suit is pending for the last 14 years. While rejecting the application for consolidation of both the suits, the Judge, Small Causes Court has observed that in view of the case of Shamim Akhtar Vs. Iqbal Ahmed AIR 2001 SC 1, the Judge Small Causes court has jurisdiction to look into the title of the landlord as an incidently.

(3.) ANOTHER application has been filed is SCC Suit No.17 of 1992, which is paper No. 180 -C by which he has prayed that the suit may be stayed under section 10 and 151 C.P.C. The Presiding Officer has recorded a finding that the SCC suit was filed in the year 1992 and after 13 years injunction suit has been filed and there is no occasion to stay the proceedings of the S.C.C. suit. It may be pointed out that earlier also, the petitioners have filed the application paper no. 49 -C, which was rejected on 11.5.2005. So far as application paper no. 192 -C is concerned which has been filed for consolidating both the suits, nature of both the suits are quite different. The suit has been filed before the Civil Court for injunction after 13 years of filling of S.C.C. suit, cause of action of both the suits being different, there is no occasion of consolidating both the suits,. The suit in Small Causes Court has been filed under the Provincial Small Cause Courts Act, whereas the suit for injunction has been filed under Specific Relief Act, therefore, both the suits cannot be consolidated together.