SAROJ KUMAR DEY Vs. SUNIL KUMAR DEY

JUDGEMENT

(1.) This is an application under Section 115 of the Code of Civil Procedure and it is directed against Order No. 24 dated June 24, 1976, passed by the Judge, Third Bench, City Civil Court at Calcutta, in T.S. No. 565 of 1975, allowing the Plaintiff's application for analogous hearing of T.S. No. 565 of 1975 with T.S. No. 326 of 1975 and rejecting the application of the Defendant for stay of the subsequent suit under Section 10 of the Code of Civil Procedure.

(2.) The Petitioners and the opposite parties are all the sons and daughters of Monmohan Dey, since deceased. The Petitioners as Plaintiffs instituted T.S. No. 326 of 1975 in the City Civil Court at Calcutta against the opposite parties for a declaration that the deed of gift executed by their father on March 6, 1972, was void and invalid and for cancellation of the same. There was also a prayer for a further declaration that the Petitioners as heirs have 2/11th share in the said property which comprises of residential house at premises No. 52/B Kailash Bose Street, Calcutta-6 and for permanent injunction against the Defendants. In the said suit the Defendants' opposite parties Nos. 1 to 3 appeared and filed written statement contending, inter alia, that the deed of gift was not void and invalid, but the same was a valid document executed out of love and affection by their father in favour of the Defendants opposite parties Nos. 1 to 3. The opposite parties Nos. 1 to 3 subsequently instituted T.S. No. 565 of 1975 in the City Civil Court at Calcutta against the Petitioners as well as the opposite parties Nos. 4 to 9 for declaration of their title on the basis of the said deed of gift for recovery of possession and permanent injunction and damages. The Petitioners who are Defendants in this suit entered appearance and filed a written statement. The defence of the Petitioners, inter alia, is that the deed of gift is a void and invalid document and as such, the Plaintiffs were not entitled to get the declaration asked for by them.

(3.) On May 24, 1976, the Petitioners filed an application under Section 10 of the Code of Civil Procedure in T.S. No. 565 of 1975 for staying the suit till the disposal of T.S. No. 326 of 1975 on the ground that the matters in issue in the above suit is also directly and substantially issue in T.S. No. 326 of 1975 which is a previous-suit instituted between the same parties and both the suits are pending before same Court. On May 31, 1976, the opposite parties Nos. 1 to 3 also filed an application in T.S. No. 565 of 1975 under Section 151 of the Code of Civil Procedure praying for analogous hearing of T.S. No. 326 of 1975 and T.S. No. 565 of 1975 on the ground that the subject-matter in issue as well as the parties are directly and substantially the same in both the suits. On June 26, 1976, the Judge, Third Bench, City Civil Court at Calcutta, after hearing the parties passed Order No. 24 and held that the issues raised in both the suits between the same parties are almost same. It has been, further, held that the mandatory provisions of Section 10 of the Code of Civil Procedure though intended to bar a separate trial of suit in which the matter in issue is directly and substantially in issue in a previous instituted suit between the same parties, yet this bar does not apply to the simultaneous hearing of the latter suit and earlier suit after consolidation of the two suits. Section 10, Code of Civil Procedure, is never intended to take away the inherent power of the Court to consolidate suits for ends of justice. The learned Judge, therefore, allowed the prayer for stay under Section 10, Code of Civil Procedure.