GURU PRASAD MOHANTY Vs. BIJOY KUMAR DAS

JUDGEMENT

(1.) This revision petition is directed against the order dated 1-10-1983 by the Subordinate Judge, Cuttack in Tille Suit No. 149/494 of 1981/1983 rejecting the petitioner's application under Section 10, Civil P. C. The question that arises for consideration is whether in a case where the ingredients of Section 10, Civil P. C. are satisfied, has the Court no jurisdiction to direct consolidation of the two suits? The two suits in question in the Present case are Title Suit No. 233 of 1931 and Title Suit No. 149/494 of 1981/1983. The former was filed on 3-10-1981 in the Court of the Subordinate Judge. Cuttack and the latter in the Court of the First Munsif, Cuttack on 16-11-1981. By order dated 5-7-1983 of the District Judge, Cuttack Title Suit No. 233 of 1981 was transferred to the Court of the Additional Sub-Judge, Cuttack. Again by 12-9-1983 both the suits were transferred to the Court of the Subordinate Judge, Cuttack. On 15-4-1982 the petitioners (defendants in the said suit) filed an application under Section 10, Civil P. C. in Title Suit No. 149/494 of 1981/83 for stay of the further proceedings of the said suit till disposal of the Title Suit No. 233 of 1981. On the other hand, the opposite party (plaintiff in the suit) filed an application on 27-9-1983 for analogous hearing of the suit with Title Suit No. 233 of 1981. Each party filed objection to the petition filed by the other. The trial Court after hearing the parties on their respective petitions, by his order dated 1-10-1983 rejected the application of the petitioners for stay under Section 10, Civil P. C. and accepted the application filed by the opposite party for analogous hearing of both the suits. This order of the learned Subordinate Judge is impugned in this revision petition.

(2.) The main contention raised on behalf of the petitioner is that Section 10 Civil P. C. is mandatory in nature and the trial Court having found that the ingredients of the said section are satisfied in this case was bound to pass an order of stay in the terms of the provisions of the said section and the Court had no jurisdiction to direct analogous hearing of the two suits. The contention on behalf of the opposite party on the other hand is that even if the ingredients under Section 10, Civil P. C. are satisfied in this case, it is still open to the trial Court to consolidate the two suits and to direct analogous hearing of the same in the ends of justice.

(3.) At this stage it will be helpful to give in short the case of the respective parties in the two suits. In Title Suit No. 223 of 1981 Jayadip Mohanty, a minor (petitioner 2) in this revision is the sole plaintiff and the opposite party in this revision is defendant 9 therein. In the said suit the plaintiff prays, inter alia, for a decree for specific performance of the contract executed between 5-4-1976 and 12-4-1976 by defendant Nos. 1 to 4 in his favour and further prays that defendants 5 to 8 and defendants 1 to 4 be directed to execute and register a sale deed in respect of the 'A' Schedule properties in favour of the plaintiff and defendants 5 to 8 within a time fixed by the Court after obtaining permission from the Khasmahal authority and in case defendants 1 to 4 fail to execute and register the sale deed within the time granted by the Court the latter may execute and register a sale deed on behalf of the defendants 1 to 4 after obtaining the necessary permission for a decree for permanent injunction against the defendants 1 to 11 not to interfere with the possession of the plaintiff and for restraining the defendants 1 to 4 not to transfer the property in favour of defendants 5 to 9. The property described in schedule 'A' to the plaint is District-Cuttack, Mouza-Cantomnent, Khata No.335, plot No. 223, Pattadari area A. I 658 decimals, Bungalow Holding No. 717, new No. 849, Ward No. 7, Cuttack Municipality. The gist of the plaintiff's case as narrated in the plaint is that there was an agreement between the defendants 1 to 4. the owners of the suit property and the plaintiff through his adoptive mother Smt. Sabitri Dei and defendants 5 to 9 that the property will be sold in favour of the plaintiff and defendants 5 to 9. The relationship between the parties is quite close inasmuch as the plaintiff's natural mother Sukruti is the daughter of defendant No. 9 (opposite party). Defendants 5 to 8 are the wife and the other children of defendant 9. In view of the close relationship between the parties a sum of Rs. 20,000/- was paid by the natural father of the plaintiff to defendant 9 to take necessary steps for obtaining this sale deed. A written agreement on a stamp paper for sale of the 'A' Scheduled properties was executed on payment of Rs. 25,000/- to the defendants. Subsequently, due to some misunderstanding between the defendant 9 and the father of the plaintiff the former in collusion with defendants 1 to 4 has been trying to exclude the plaintiff from the deed relating to the purchase of the properties. The plaintiff has further averred in his plaint that the first floor of the house in question is in occupation of defendants 5 to 9 whereas a portion of the ground floor is being occupied by the plaintiff and his natural father and mother. Defendants 5 to 11 who are the contesting parties, in their written statement admitted that there was a proposal by defendant 9 to purchase the land Benami in the names of his children and also the plaintiff out of sheer love and affection. According to them there was no contractual relationship between the plaintiff and defendants 1 to 4 at any time. They also denied payment of any amount by the natural father or the mother of the plaintiff to them at any time They asserted that difference having arisen between the natural father of the plaintiff and his father-in-law, Bijoy Das (opposite party), the latter did not like to enter into controversy and accordingly defendants 1 to 4 had sold the suit properties to these defendants under separate sale deeds. The defendants further asserted that the house in question had been purchased by defendant 9. Dr. Guru Prasad Mohanty with his wife and the plaintiff were occupying two rooms in the ground floor with the permission of defendant 9. Title Suit No. 149 of 1981 has been filed by defendant 9 for eviction of Dr. Guru Prasad Mohanty from the said premises and the suit is still pending.