MUGLI Vs. KHALIQ DAR

JUDGEMENT

(1.) THIS is a civil revision directed against an order passed by learned Sub Judge Baramulla on 12 -5 -1977 ordering the consolidation of two civil suits pending between the same parties in his court.

(2.) MST . Mugli, on 22 -10 -1974, filed a suit for permanent injunction against one Khaliq Dar Praying that Khaliq Dar be permanently restrained from interfering with the construction of a house by her in a given piece of land. On the following day Khaliq Dar also brought a suit for permanent injunction against Mst. Mugli praying that she be permanently injuncted from constructing the house on that piece of land. In both the suits written statements were filed by respective defendants and issues framed. Besides other issues, an issue was framed to the effect as to whether the suit filed later was to be consolidated with the one brought earlier or be stayed under section 10 of the C. P. C. This issue was taken up first for consideration by the learned Sub Judge and vide the impugned order directed that both the suits be consolidated. This revision has been filed against this order of consolidation of the suits.

(3.) AFTER having quoted section 10 of the C. P. C. in his judgment, the learned Sub Judge has admitted that the provisions were mandatory and expressly bar a civil court to proceed with the subsequently instituted suit in which the matter in controversy was substantially the same between the same parties. It has been further observed in the judgment under revision that the provisions of Section 10 of the Code of Civil Procedure were applicable in the matter as the issues as made out in both the suits were identical and the decision on the main issue in one of the suits would decide the matter in the other as well. After admitting all this, the learned Sub Judge has, however directed both suits to be consolidated to avoid, as he has put it, the multiplicity of litigation between the parties, the learned trial court has admitted that there was no provision of law under which two such suits could be ordered to be consolidated but in his view the facts of both the cases were such that the court was within its jurisdiction to invoke its inherent powers under section 151 C. P. C. and direct the consolidation of the suits. In my view, however, the learned trial court in invoking the inherent powers in this case has committed an error in law. It was a settled principle of law that inherent powers may be exercised by a civil court subject to the condition that there was no specific provision of law which would have a bearing and which would cover the controversy that might have arisen. If there was available a specific provision in the Code that would fulfill the requirements of the case, such a provision ought to be followed and the inherent powers need not be invoked. In presence of Section 10 in the Code of Civil Procedure which was clearly applicable to the matter at hand, the trial court ought not to have ignored the provisions and instead invoked its inherent powers under section 151 C. P. C. for ordering the consolidation of the suits. Admittedly subject matter of both the suits was the same, the parties were the same and the relief sought in both the cases was the same. I fail to understand if recourse to Section 10 C. P. C. could not be taken under these circumstances then under what other circumstances its provisions could be profitably invoked. This was a fit case in which the trial court should have refrained from invoking its inherent powers and instead followed the specific provisions in Section 10 of the Code of civil Procedure. The object to restrict the multiplicity litigation between the parties could not be achieved by the method employed by the trial court. Even during the consolidation, the parties had to produce evidence in support of their respective claims in both suits and both the suits would remain pending in the trial court as separate suits and both will have to be attended to separately though, of course, on one and the same date. This hardly would lead to the restriction of the litigation between the parties. If the provisions of Sec. 10 C. P. C. would be followed, the evidence that would" be lead by the respective parties would be with regard to the main issue in the firstly instituted suit alone and on the conclusion of the proceedings in the firstly instituted suit, the judgment may be equally applicable to the next instituted suit under sec. 11 of the C. P. C. In fact the intention and the aim and object of section 10 of the Code of Civil Procedure was to avoid the multiplicity of suits between the parties. By following specifically the provisions of Sec. 10 C. P. C. the trial court would have helped the parties in limiting their dispute to the real controversy between them and obtain an adjudication which could have been made applicable in accordance with law to the suit that was stayed. In my view therefore, the trial court having failed to give effect to sec. 10 C.P.C. -which was clearly applicable to the suits at hand, has wrongly restored to invoke its inherent powers under sec. 151 C. P. C. The finding of the learned trial court on this issue is therefore, set aside, and it is directed to proceed with the suit which was instituted first and stay the proceedings in the suit filed later,