MEENA DEVI Vs. SHANTI DEVI

JUDGEMENT

(1.) The present petitioner by way of filing this petition under Article 227 of the Constitution of India has prayed for quashing of the order dated 15.3.2012 in Partition Suit No. 20 of 2003 passed by the learned Civil Judge (Junior Division)-II, Garhwa whereby the learned Court below passed an order to reject the petition dated 20.10.2011 filed by the plaintiff to proceed Partition Suit No. 34 of 2003 jointly for common issues of partition amongst the parties. Heard the learned counsel appearing for the petitioner-plaintiff and perused the impugned order as well as the materials placed on record.

(2.) It appears that two separate suits have been filed amongst the same parties. One was filed by the petitioner-plaintiff against the defendants-brothers. Subsequently defendants Nos. 12 and 13 preferred another suit in respect of same property in question. It appears that application was moved by the petitioner-plaintiff to proceed further in Partition Suit No. 20 of 2003 alongwith Partition Suit No. 34 of 2003, jointly for common issues of partition amongst the parties. The court below rejected the said application by observing that if separate judgments are passed in both the suit, certainly there may be possibility of contradictory finding over aforesaid first issue due to laches of parties concerned. It was further observed that there is no provision in C.P.C. for joint/common trial of separate suits and directed the parties to agitate the matter again during argument of both suits so that arguments can be heard simultaneously. Since two suits have been filed in respect of same property amongst the brothers for partition of the property in question this court is of the view that the direction given by the learned court below to agitate the matter at the time of argument is not correct as the possibility of contradictory findings on the same issue cannot be ruled out. Moreover, Section 10 of the CPC provides for stay of subsequent suit where the issues and parties of both the suits are same. The Hon'ble Apex Court has also in the case of National Institute of Mental Health and Neuro Sciences vs. C. Parameshwara, 2005 2 SCC 256 while dealing with two identical cases, held in Para 8 as follows:--