This Special Civil Application preferred under Article 227 of the Constitution of India where challenge is made to the order of consolidation passed by the learned City Civil Judge, Ahmedabad in Application Exh.49 in Civil Suit No. 2864 of 1996 whereby the Court has consolidated the trial of both the suits viz., Regular Civil Suit No. 3140 of 2003 with Regular Civil Suit No. 2864 of 1996.
Learned advocate for the petitioner urged this Court that only the parties to both the suits are common and the property in respect which the suits have been filed is the same. However, the cause of action for bringing both the suits are different and the reliefs sought for also are completely different, and therefore, the Court has committed an error in passing such an order. He further urged, by taking this Court through various documentary evidences that essentially based on the order passed by this Court in Special Civil Application No. 10935 of 2007 has weighed with the Court and consolidated the suits. However, this Court while disposing of the said petition has not given directions for consolidation but merely directed the Court to decide such application; if moved.
On having heard learned advocate for the petitioner as also on closely examining the documentary evidence on record as also the order impugned, it emerges that the trial Court has noted the fact that the parties in both the suits are same and so is the suit property. In the suit preferred in the year 1996, the relief is for permanent injunction, whereas possession of the suit property has been sought for alongwith other consequential relief in a subsequently filed suit. Some of the contentions raised in the subsequent suit; particularly, whether the first suit preferred could have included all the reliefs which have been asked for in a subsequent suit or not and with a particular emphasis on the maintainability of the subsequent suit also, the Court noted that those issues can be decided at the time of trial.
On due examination of the materials, there is neither jurisdictional error committed by the Court in passing such an order nor is there any perversity which calls for any interference.
As can be noted from the record itself, the order impugned is passed in Application Exh. 49 on 2nd April 2012. The issues were framed in Civil Suit No. 2864 of 1996 on 16th February 2012 and the order of consolidation being nearly after 2 months, naturally the issues in Civil Suit No. 2864 of 1996 will not have any reflection of the disputes of the parties in a subsequently filed suit. Needless to mention that in wake of this order of consolidation, the parties may make appropriate request, if the Court on its own does not cast the issues.
With this liberty being kept open for the petitioners, Special Civil Application stands disposed of with no order as to costs.
None of the observations made in this order shall influence the trial Court in the matter of considering the Suits on merit.
{Ms.
Sonia Gokani, J.} Prakash* Top