HASMUKHBHAI MAGANLAL DARJI Vs. MUMAN GULAMBHAI ISUBBHAI

JUDGEMENT

(1.) SHORT dispute involved in this petition is as to whether the trial court/competent court ought to have consolidated three different suits instituted on three different cause of action with different set of facts? The three suits were instituted by three brothers for specific performance of the contract in respect of different pieces of land. On the ground that the nature of all the suit is same, the defence is same and the deed of relinquishment is same and agreement with conditional sale is also same, the trial court thought it fit to consolidate the suits presumably under Order 5 Rule 4A as also Section 151 of the Code of Civil Procedure ( for short "CPC" ).

(2.) THE contention is that since the pieces of lands are different, transactions of loan are also different, since the power of attorney who intends to depose in all the three suits on behalf of his principal is incapable of giving such deposition in view of Jhanki Vashdeo Bhojwani and another Vs. Indusind Bank Limited and others [ AIR 2005 SC 439 ]; the consolidation of suit will complicate the matter and cause prejudice to the rights and contentions of the plaintiffs. It is also argued that powers under Order 5 Rule 4A of CPC were misconceived inasmuch as the provision introduced by U.P.State and not Gujarat.

(3.) HAVING considering the arguments advanced by the learned counsel for the parties as also relevant provisions of law, true it is that the Court under Section 151 of CPC has a jurisdiction to order consolidation of the suits, however, the premise on which the trial court proceeded was not correct. The cardinal principle on which the consolidation of the suits can be ordered is the involvement of more or less identical issues in the suit; meaning thereby that the evidence rendered in one suit would dispose of the other. The object is to avoid multiplicity of evidence and smoothen the proceedings so that the multiplication of judgments can be avoided. If different persons are to depose on their facts, consolidating the suit will only complicate the matter. Similarity of the facts or the documents cannot be equated with the facts being same or the evidence being same. The two suits may be similar but may not be the same. While in similar suits, consolidation would complicate the things inasmuch as the party may have different causes of action, different reasons to justify their case and different evidence to adduce. If, however, the cases are same as in the land acquisition proceedings, consolidation would be permissible.