HAMID MUZAFFAR Vs. MASOOD MUZAFFAR AND ORS.

JUDGEMENT

(1.) THIS application u/s. 24 C.P.C. has been moved by Hamid Muzaffar with the prayer that the suit No. 278 of 1980 pending in the court of III Additional Munsif, Meerut be transferred to the court of 1st Civil Judge, Meerut with the direction that both the suits be consolidated, tried and decided together. The applicant Hamid Muzaffar is the real brother of respondents Masood Muzaffar, Javed Muzaffar and Hasan Muzaffar. Smt. Husna Ara Nasib and Smt. Roshan Ara respondents are sisters and Smt. Jehan Begum is their mother. Masood Muzaffar and Javed Muzaffar, respondents No. 1 and 2, filed a suit on 1.5.1980 being suit No. 278 of 1980, now pending in the court of III Addl. Munsif, Meerut against Hamid Muzaffar for ejectment from a portion of the house situate in village Rasoolpur Dhaulri in the district of Meerut and damages for use and occupation on the ground that they were owners of this house on the basis of an oral gift made in their favour by their father Mahmood Muzaffar was in occupation of the same as licensee. Hamid Muzaffar filed a suit on 7th of May 1980 being suit No. 281 of 1980 in the court of the Civil Judge, Meerut against Mahmood Muzaffar, the father and his brothers for declaration that he was owner of 1/4th share in all the four houses of Sheikh Mahmood Muzaffar including the house, which is involved in the suit mentioned above in the court of III Additional Munsif, Meerut. The applicant Hamid Muzaffar claims 1/4th share in all the four houses which belong to his father on the basis of oral gift alleged to have been made by the father on 1st of December, 1972. It so appears that the applicant, who moved an application in suit No. 278 of 1980, to stay the proceedings under section 10 of the C.P.C. as suit No. 281 of 1980 was pending in the court of Civil Judge, Meerut. The learned Munsif appears to have rejected the plea of stay under section 10 of the C.P.C. because suit No. 278 of 1980 was a previously instituted suit. The applicant thereupon moved an application before the District Judge for transfer of the suit No. 278 of 1980 to the court of Civil Judge, Meerut so that both the suits be decided by one and the same Judge. Learned District Judge rejected that application on the ground that the matter raised under section 10 of the C.P.C. has been decided. Hence this application for transfer under section 24 of the C.P.C.

(2.) IT has been argued by the learned counsel for the petitioner that the substantial question of fact and law involved in both the suits are the same inasmuch as it has to be decided whether the father Mahmood Muzaffar made an oral gift on 1st of December, 1972 in favour of all his sons giving them 1/4th share in all the four properties or whether the father Mahmood Muzaffar has made an oral gift of the house situated in village and involved in suit No. 278 of 1980 exclusively in favour of two plaintiffs in that suit. It is urged that in suit No. 281 of 1980, pending in the court of Civil Judge, the entire property of Mahmood Muzaffar is involved, whereas, in suit No. 278 of 1980 only a portion of the house situated in village is involved. It so appears that the father Mahmood Muzaffar was alive when both the suits were filed and so he was made a party by the applicant in the suit which he filed in the court of Civil Judge, Meerut, but unfortunately Mahmood Muzaffar has expired and now his widow and other heirs are substituted as his legal representatives in suit No. 281 of 1980, pending in the court of Civil Judge, Meerut. The applicants' main contention is that under the prevailing circumstances it would be just and proper that both the suits are decided by one and the same Judge to avoid conflicting decisions as well as for the sake of the convenience of both the parties.

(3.) THE facts stated above leave no room for doubt that the substantial question for determination in both the suits is whether Sri Mahmood Muzaffar has made oral gift of his entire property including the one situated in the village on 1.12.1972 in favour of all his sons in equal shares. Both the suits thus raise certain common questions of fact having substantial bearing on the decision of each of the case. I agree with the view taken in Purna Chandra Mahanty and another v. Samanta Radhaprasana Das : A.I.R. 1953 Orissa 46 (D.B.) that in such circumstances it is desirable that both the suits should be tried by the same Judge to avoid conflict of decisions and the balance of convenience also requires that both the suits be decided by one and the same court. I therefore find it just and proper to transfer suit No. 278 of 1980 pending in the court of III Addl. Munsif, Meerut to the court of Civil Judge Meerut for disposal according to law. I would however like to make it clear that it would be open to both the parties to raise issues before court below under Sections 10 and 11 C.P.C. and other legal pleas available to them including the plea for consolidation of both the suits. This order should not be construed in any way to affect or influence judicial discretion of the trial Judge in determining such pleas. The trial Judge should consider all such pleas and exercise his judicial discretion in deciding them.