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1978 Supreme(Goa) 7
Goa High Court
K. M. MISHRA ADDL., J.C.
Damodar Mangalji and Co. (Pvt.) Ltd. - Appellant
Versus
The Oriental Fires and General Insurance Co. Ltd. - Respondents
Civil Revn. Appln. No. 5 of 1978
Decided On : 11 July 1978
A. Setalvad with A.J. Kenkre, for Applicant; B. Reis (for No. 1) and J. Dias, Govt. Advocate (for No. 2), for Respondents.
Consolidation of suits is permissible to avoid conflicting decisions on common questions of fact and law.
Headnote:
TRANSFER OF SUIT - CONSOLIDATION OF SUITS - COMMON QUESTIONS OF FACT AND LAW - AVOIDANCE OF CONFLICTING DECISIONS - JURISDICTIONAL ERROR - CIVIL PROCEDURE CODE, 1908 - SECTIONS 24, 151.
Fact of the Case:
The petitioners, who were defendants in a suit filed by the Union of India for damages caused by their barge, filed an application for transfer of another suit filed by them against their insurers for indemnity to the Court where the first suit was pending, seeking consolidation of the two suits to avoid conflicting decisions on common questions of fact and law.
Finding of the Court:
The court found that there were common questions of fact and law in the two suits, including the qualifications of the barge's master and the seaworthiness of the barge, and that trying the suits in different courts could lead to conflicting decisions.
Issues: 1. Whether the two suits should be consolidated to avoid conflicting decisions on common questions of fact and law. 2. Whether the court had jurisdiction to reject the petition for transfer and consolidation.
Ratio Decidendi: 1. Consolidation of suits is desirable to avoid multiplicity of trials and conflicting decisions on common questions of fact and law. 2. The court erred in rejecting the petition for transfer and consolidation based on the incorrect finding that there were no common issues in the two suits.
Final Decision: The court allowed the revision application and transferred the second suit to the court where the first suit was pending, leaving it to the court to decide whether to try the suits together or one after the other.
ORDER :- This petition under S. 115 of the Code of Civil Procedure is directed against an order dated January 16, 1978 passed by the Addl. District Judge, Panaji dismissing an application filed by the petitioner under Ss. 24 and 151 of the Code of Civil Procedure for the transfer of Civil Suit No. 49/72 pending in the Court of Senior Civil Judge, Margao to the file of District Judge and that Suit No. 49/72 be directed to be consolidated with Civil Suit No. 13/72 pending before the Addl. District Judge or tried one after the other.
2. The facts relevant for the purpose of disposal of this petition may be stated as under :-
3. The petitioners carry on business as mine owners and exporters of iron ore and for the said purpose own and operate barges. The first respondent carry on business of Insurance. The petitioners are one of the defendants in Suit No. 13/72 (to be hereinafter referred to as "Panaji Suit") and the plaintiffs in Suit No. 49/72 (to be hereinafter referred to as "Margao Suit"). The "Panaji Suit" has been filed by the Union of India to recover compensation amounting to 24 lakhs from the defendants for the damage caused to their Borim bridge as a result of an accident said to have caused by the barge m. v. Prabhat on 4-11-1969. In the said suit are impleaded the present petitioners, Prakashchand Jain, Jivanmal Jain, Rajaram Saulo Saunto and Ali Haidar Khan as defendants. The barge Prabhat and another barge by name of Kamdhenu were owned by the petitioner till 6-8-1969 when an agreement for sale was entered into between them and defendants Nos. 2 and 3 of the Panaji suit. The said agreement provided that the property in the said two barges would pass in favour of the said Jains on the delivery of the barges. The said agreement further provided that until the balance of the purchase price was paid the said barges would remain mortgaged or pledged to the petitioners. Delivery of the said barges was handed over by the petitioners on 6th August, 1969. So after 6-8-1969 the two Jains were operating the barges including Prabhat. Subsequently the Jains assigned all their rights under the said agreement to a proprietory undertaking known as The Goa Shipping Company. In pursuance of the aforesaid agreement the purchasers i.e. the two Jains insured the said barges with the first respondent to this present petition namely the Oriental Fire and General Insurance Co. Ltd. having its registered office at Bombay and a branch office at Vasco de Gama and the joint policy was issued in favour of the petitioners and the said purchasers under which the Insurance Company agreed to indemnify the policy holders against all risk including third party risk to the extent of Rs. 5 lakhs.
The Union of India in their suit i. e. Panaji Suit have contended that the said collision occurred as a result of negligent navigation of the barge which was not seaworthy and that its master had no requisite qualification and that the defendants to the suit are liable to make good the loss amounting to Rs. 24 lakhs. Under the provision of the Goa Civil Court Act, the said suit was filed in the Court of the District Judge at Panaji and the same now on transfer is pending for disposal in the Court of the Addl. District Judge.
The Margao Suit has been filed against the Insurers claiming indemnity to the extent of Rs. 5 lakhs in the event of the petitioners being held liable in the Panaji Suit in the Court of Civil Judge (S. D.) at Margao under the provisions of the said Goa, Daman and Diu Civil Court Act. The first respondent (defendants in the Suit) in their written statement pleaded that they were entitled to repudiate their liability under the Insurance policy.
4. To avoid multiplicity of trials and conflict of decision the petitioners filed an application in the Court of Addl. District Judge, Panaji for consolidation of the two suits. It is rejection of the said petition which has given rise to the present action.
5. The learned Addl. District Judge has r
