Common evidence cannot be recorded in separate suits when the parties, cause of action, and reliefs are different.

JUDGMENT

1. By the present petition, the Petitioner has prayed for the following reliefs:-

"a) To call the R & P of R.C.S. 537 of 2012 and R.C.S. No. 149 of 2015 from the file of Jt. Civil Judge (S.D.), Kalyan;

b) To issue writ of certiorari or any other appropriate writ and set aside the Orders dated 29.08.2019 and 09.03.2021 passed by the Jt. Civil Judge (S.D.), Kalyan on Exhibit - 101 and 105 respectively;

c) Pending hearing and final disposal of this Writ Petition, further proceedings in R.C.S. 537 of 2012 and R.C.S. 149 of 2015 pending on the file of Jt. Civil Judge (S.D.), Kalyan be stayed."

2. RCS No.537 of 2012 has been filed on 05.03.2012 by Respondent Nos.1 and 2 being the plaintiffs therein against the Petitioner No.1 and his father before the Civil Judge, Senior Division, Kalyan for injunction in respect of suit property bearing Survey No.44 Hissa No.(2b) ad-measuring 85 gunthas situated at Taluka Kalyan, District Thane.

3. RCS No.149 of 2015 has been filed on 02.03.2015 by Petitioner Nos.1 and 2 along with their sister Smt. Neeta Raman Shinde (Respondent No.4 herein) against Drupadi Waman Bhoir, Shivaji Waman Bhoir, Netaji Waman Bhoir, Umaji Waman Bhoir, Aasha Anil Patil and Tanaji Waman Bhoir (Respondent No.3 herein) for a declaration to obtain sale permission in respect of Survey No.44 (2b) ad-measuring 85 gunthas (same property as in Suit No.537 of 2012) and execution of the sale deed in the name of the Plaintiffs therein.

4. As seen, the Plaintiffs in RCS No.537 of 2012 have prayed for injunction on the ground that they are in possession of the suit property whereas the Plaintiffs in RCS No.149 of 2015 have also prayed for a declaration and execution of sale deed in respect of the same property on the ground that they are in possession of the same. Further in RCS No.149 of 2015 Plaintiffs have also alleged that the Defendants therein i.e. 6 family members being legal heirs of Waman Kamalu Bhoir have sold a portion out of the suit property which is subsequently numbered as Survey No.44(2b) to Shri. B.K. Gawade and P.H. Teli for a total consideration of 1,60,000.00 and have challenged the sale deed dated 15.05.2008.

5. In the backdrop of the above facts the Defendants in RCS No.537 of 2012 filed application under Section 24 of the Code of Civil Procedure, 1908 (CPC) for clubbing the aforesaid two suit proceedings together and sought to lead common evidence under the provisions of Section 114 read with Order 47 of the CPC. This application was filed on 22.11.2017 before the District Judge, Thane. It was the contention of the Defendants that RCS No.149 of 2015 was filed by them in the capacity of Plaintiffs for seeking declaration and specific performance of contract against the original owner who had allegedly executed the agreement in their favour and had delivered possession of the suit property to them. It was the further contention of the Defendants that since the subject property in the aforesaid two suit proceedings being the same, for the sake of convenience both the suits be clubbed and tried together. This application was resisted by the Plaintiffs in RCS No.537 of 2012 on the ground that the cause of action and relief claimed in both the aforesaid suits was distinctly different, so also the parties to both suits were distinctly different. After considering the submissions of the parties, vide order dated 22.11.2017 the District Judge partially allowed the application and held that RCS No.149 of 2015 be transferred to the Court of Joint Civil Judge, Senior Division, Kalyan where RCS No.537 of 2012 was pending hearing and final disposal. A further direction was given to the said Trial court to decide whether both the aforesaid suits be tried simultaneously or separately.

6. Before the Trial court, the Defendants in RCS No.537 of 2012 therefore filed an application for clubbing the aforesaid two suits together for trial and for leading common evidence in both the suits. Once again it was contended by the Defendants