IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF DECEMBER 2017 BEFORE THE HON'BLE MR. JUSTICE B. VEERAPPA WRIT PETITION NO.55625 OF 2017 (GM-CPC) BETWEEN:
K.M.Mariswamy S/o late MolleHonnegowda Aged about 53 years R/at Hippemaradoddi Village [KANVA] Kutagal Hobli Ramanagara Taluk Ramanagara District – 562 159.
(By Sri.Shivakumar U., Advocate) AND:
1. Sri.T.Narayana S/o late Ningegowda @ Thagadegowda Aged about 62 years 2. Sri.K.N.Babu S/o T.Narayana Aged about 40 years 3. Sri.K.N.Sathyanarayana S/o T.Narayana Aged about 34 years All are residing at ... PETITIONER R/at Hippemaradoddi Village [KANVA] Kutagal Hobli Ramanagara Taluk Ramanagara District – 562 159.
…RESPONDENTS This Writ Petition is filed under Article 227 of the Constitution of India praying to quash the order dated 7.8.2017 passed in O.S.No.320/2015 by the learned Principal Civil Judge and JMFC at Ramanagara, dismissing I.A.No.1 filed in the said suit pending before the said Court and thereby allow the said application I.A.No.1 by ordering clubbing of two cases O.S.No.320/2015 and 343/2014 pending on the file of Prl. Civil Judge and JMFC, Ramanagara as per Annexure-F and etc.
This Writ Petition coming on for Preliminary Hearing, this day, the Court made the following:-
ORDER The plaintiff filed the present Writ Petition against the order dated 7th August 2017 on I.A.No.1 made in O.S.No.320/2015 rejecting the application filed by the plaintiff under Section 151 of Code of Civil Procedure to club O.S.No.343/2014.
2. The present plaintiff filed O.S.No.320/2015 for specific performance against the defendants to enforce the agreement dated 05.11.2001. The present respondents who are the plaintiffs in O.S.No.343/2014 filed a suit for redemption of mortgage dated 07.02.2000 directing the defendant (present petitioner) to receive the mortgage amount of Rs.5,000/- and to return the original mortgage deed with due discharge shara and possession of suit schedule property from the defendant.
3. In both the suits, the suit schedule property is the same. On the petition filed by the present petitioner under Section 24 read with Section 151 of Code of Civil Procedure seeking an order to transfer the suit in O.S.No.320/2015 to the Court of Principal Civil Judge and JMFC., Ramanagara, where O.S.No.343/2014 was pending, the Miscellaneous Petition came to be allowed. Thereafter, the present petitioner filed the application under Section 151 of Code of Civil Procedure to club O.S.No.343/2014 along with O.S.No.320/2015 and to decide together in order to avoid multiplicity of proceedings contending that the suit schedule property in both the suits are one and the same and the parties are the same.
4. The said application was resisted by the defendants contending that in both the suits stages are different and the relief claimed by the parties are different. Hence, question of clubbing both the suits would not arise. More over, in respect of the suits, defence are also different. Therefore, it is not possible to club both the suits and also contended that issues framed are entirely different. It is further contended that the application filed is highly belated one and same is filed only to drag on the proceedings and to harass the defendants. The application is not bonafide and therefore, sought for dismissal of the application.
5. The trial Court considering the application and objections by the impugned order dated 7th August 2017 rejected the application. Hence, the present Writ Petition is filed by the plaintiff.
6. I have heard the learned counsel for the petitioner.
7. Sri.Shivakumar, learned counsel for the petitioner vehemently contended that the impugned order passed by the trial Court rejecting the application to club suits is erroneous and contrary to material on record. He would further contend that when the learned Principal District Judge allowed the Misc.Petition No.17/2016 on 17.09.2016 and transferred O.S.No.320/2015 to the Principal Civil Judge and JMFC, Ramanagara where O.S.No.343/2014 is pending, the trial Court ought to have clubbed both the suits in order to avoid multiplicity of proceedings and to avoid different decree to be passed. He further contend that the impugned order passed by the trial Court is not a speaking order. Absolutely no reasons are assigned. He would contend that both the parties to the suits and the suit schedule property are one and the same. Hence, the trial Court ought to have allowed the application. The same has not been done in the present case. Therefore, sought to quash the impugned order by allowing the present Writ Petition.
8. Having heard the learned counsel for the petitioner, it is undisputed fact that the present petitioner who is the plaintiff in O.S.No.320/2015 filed a suit for specific performance to enforce the agreement dated 05.11.2001 contending that the defendants have executed the agreement in favour of the plaintiff. The same was disputed by the defendants. It is also not in dispute that the present respondents who are the plaintiffs in O.S.No.343/2014 filed a suit for redemption of mortgage deed dated 07.02.2000 directing the defendant to receive the mortgage amount of Rs.5,000/- and to return the original mortgage deed with due discharge shara and deliver possession to the plaintiff. Though the parties and suit schedule property are one and the same but the fact remains that O.S.No.320/2015 filed by the present plaintiff is for specific performance and O.S.No.343/2014 filed by the present respondents is for the relief of redemption of mortgage. The relief sought in both the suits are entirely different, the written statement filed in both the suits are entirely different, the issues are different and the stages of the suits are entirely different. The trial Court considering the relief sought for and the issues framed in both the suits was of the opinion that it cannot be clubbed and accordingly, dismissed the application exercising discretionary powers.
9. Though the learned counsel for the petitioner relied upon the judgment of the Hon’ble Supreme Court in the case of M/S.CHITIVALASA JUTE MILLS VS. M/S.JAYPEE REWA CEMENT reported in AIR 2004 SC 1687 wherein the suits have been filed for the same purposes and the trial Court has framed consolidated issues in both the suits and to avoid multiplicity of proceedings when similar issues are made, the Hon’ble Supreme Court was of opinion that the issues, reliefs and the parties are same. Therefore, the Hon’ble Supreme Court clubbed the suits to avoid multiplicity of proceedings.
10. Admittedly, in the present case and in O.S.No.343/2015 issues are different, the documents produced by the parties are different. One suit is for redemption of mortgage and another suit is for specific performance. Therefore, the judgment relied upon by the learned counsel for the petitioner has no application for the facts of the present case. When the cause of action and issues are similar, there is no quarrel to club the suits together. But admittedly, in the present case, issues, prayer and the stages of the suits are entirely different. Therefore, the trial Court was of the view that the suits cannot be clubbed. The same is in accordance with law. The petitioner has not made any ground to interfere in the impugned order passed by the trial Court by exercising powers under Article 227 of the Constitution of India.
Accordingly, Writ Petition is dismissed.
Sd/-
JUDGE Prs*