KANULAL KRISHNALAL TRIVEDI Vs. KARANLAL KRISHNALAL TRIVEDI

JUDGEMENT

(1.) Rule. Mr. S. M. Shah and Mr. A. J. Patel waive service of Rule on behalf of respondent Nos. 1 and 2(1) and 2(2) respectively.

(2.) This application is filed by original defendant No. 1 in Special Civil Suit No. 174 of 1995 against the order dated 6-11-1996 passed below Ex. 9 by the learned Civil Judge (S.D.), Bhavnagar, by which instead of staying subsequently instituted suit, ordered amalgamation with the previously instituted suit for disposal by common trial. In short, application under S.10 of the Civil Procedure Code (hereinafter referred to as "the Code" for conveience and brevity) for staying subsequently instituted suit was rejected by the Court.

(3.) Mr. Desai for the petitioner has argued very forcefully that provisions of S.10 of the Code are mandatory and if a case is squarely made out to be covered under S.10 of the Code then recourse cannot be taken to inherent powers under S.151 of the Code and pass some other order. As against that Mr. Shah for respondent No. 1 - original plaintiff and Mr. Patel for respondent Nos. 2(1) and (2)/original defedant Nos. 2(1) and (2) have argued that essentially the parties in both the suits are not same. Both the suits are based on different cause of action owing to some subsequent event and that no error has been committed by Court below in directing consolidation of the suits as would take care of question of res judicata and apprehension of inconsistent finding in relation to same subject-matter by two different Courts of concurrent jurisdiction. To fortify their contentions learned Advocates have also placed reliance upon various judgments of the Supreme Court and High Courts which will be dealt with at the appropriate stage.