The High Court has the power to withdraw any suit from a subordinate court and try it, and can order a joint trial if the suits involve common issues and evidence.

1. The Notice of Motion seeks transfer of a suit pending before the Bombay City Civil Court to this Court to be heard with the present suit inter alia on the ground that the subject matter of the two suits is identical; common oral and documentary evidence is likely to be led in both the suits; and there is a likelihood of conflicting decisions in the two suits if separate trials are conducted.

2. The Plaintiffs claim to be trustees for the time being of a public charitable trust, Bai Motibai Kasara Baug Borivali Trust. The Defendants are trustees of another public charitable trust, M.N.K. Bhatia High School Trust. The Plaintiffs as such trustees own a plot of land together with a building consisting of ground and two upper floors and a terrace with two rooms and washrooms together with open ground at Kandivali in Mumbai. Prior to 1982 the Defendant trust was running a school in the name of M.N.K. Bhatia High School somewhere near Bombay V.T., Fort, Mumbai. The school was closed down in 1982. The Defendants were thereafter desirous of restarting the school somewhere in the suburbs of Mumbai. It is the Plaintiff’s case that the Plaintiffs agreed to accommodate the Defendants in parts of their building in the suit property under a leave and licence agreement to be executed between the parties. Pending finalization of such agreement, in April 1991, the Defendants started using parts of the suit building on the ground and first floors thereof. It is the case of the Plaintiffs the despite several attempts on the part of the Plaintiffs, the Defendants refused to execute any agreement and contended instead that the building was to be given to the Defendants on a ‘rental’ basis. Since the parties could not arrive at any agreement of licence, the Plaintiffs called upon the Defendants to vacate the ground and first floors of the building. Since the Defendants refused to comply, the Plaintiffs have filed the present suit claiming a declaration that the Defendants are trespassers of the ground and first floors of the suit building and praying for a decree of possession and mesne profits. This suit was filed on 23 August 1996.

3. The Defendants, on the other hand, claim that the Plaintiffs had agreed to let out to the Defendants the entire suit building including the second floor as well as the ground around the building on terms and conditions as may be agreed upon between the parties. Though this agreement was not finalized, the Plaintiffs put the Defendants in possession of the whole of the suit building in April 1991 and the Defendants had since been in possession of the suit building together with the ground. It is the Defendant’s case that in December 1993, the Plaintiffs dispossessed the Defendants from the second floor of the suit building by illegally obstructing their entry to the second floor. It is the case of the Defendants that the Plaintiffs have also taken forcible charge of the keys of the suit building and each of the rooms therein and in the premises, from 20 December 1993, the Plaintiffs are in illegal control of the suit building including the class rooms and the Defendants are at the mercy of the Plaintiffs for opening and closing the class rooms on the ground and first floors, whilst the second floor is permanently closed for them. The Defendants submit that they are also prevented from using the playground forming part of the property. On these facts, the Defendants filed their own suit on 13 April 1994 in the Bombay City Civil Court, claiming their dispossession by the Plaintiffs herein otherwise than by due process of law of the second floor of the suit building together with the playground, and praying for a mandatory order and injunction directing the Plaintiffs to handover the keys to the whole of the suit building including each of the rooms from the ground to the second floor and the compound, and for other incidental reliefs. This suit, originally numbered as B.C.C.C. Suit No. 2450 of 1994, was red