Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(All) 1691

IN THE HIGH COURT OF ALLAHABAD
J.J. MUNIR, J.
Smt. Kamla Kapoor (Since Deceased) and Another - Revisionists
Versus
Neelam Kapoor and Others - Opposite Parties
Civil Revision No. 49 of 2021
Decided On : 23-11-2023

Advocates Appeared:
For the Revisionist : Ashutosh Yadav, Abhilasha Singh, Shyam Lal.
For the Opposite Party : Vikash Chandra Tiwari, Abhijeet Mukherji, Sushmita Mukherjee.

Consolidation of suits under Section 10 of the Code of Civil Procedure is permissible if the suits involve common questions of law and fact, and consolidation would avoid conflicting opinions and serve the interest of justice.

Headnote:
Consolidation - Civil Procedure - Code of Civil Procedure, 1908 - Section 10
Fact of the Case:
The plaintiff sought relief of declaration and permanent prohibitory injunction in Original Suit No.465 of 2015, and later sought partition in Original Suit No. 645 of 2017 against the same defendants. The Trial Judge ordered the suit of 2017 stayed under Section 10 of the Code.
Finding of the Court:
The Court found that the suits involved common questions of law and fact and should be consolidated and tried together. The Court held that the subsequent suit for partition was contingent upon the findings in the first suit for declaration.
Issues: The primary issue was whether the subsequent suit for partition could be consolidated with the previous suit for declaration, considering the same parties and subject matter.
Ratio Decidendi: The Court held that Section 10 of the Code does not prevent consolidation of suits and that consolidation would avoid conflicting opinions and serve the interest of justice. The Court emphasized that the evidence in both suits would serve the same purpose and that consolidation would prevent conflicting findings.
Final Decision: The Court set aside the order staying the proceedings of the subsequent suit and directed the Trial Court to consolidate the two suits and try them together, expediting the trial and deciding the suits within six months.

JUDGMENT :

1. This civil revision is directed against the order of Smt. Neelu Mainwal, the then Civil Judge (Sr. Div.), Gautam Budh Nagar dated 09.12.2019, ordering a stay of Original Suit No.654 of 2017, under Section 10 of the Code of Civil Procedure, 1908 (for short, 'the Code').

2. The facts giving rise to this revision are these:

Kamla Kapoor, wife of the late Maharaj Kumar Kapoor, instituted Original Suit No.465 of 2015, seeking reliefs of declaration and permanent prohibitory injunction. Kamla Kapoor has since died and has been substituted in the suit by her daughter, Smt. Ruchi Sharma as plaintiff No.1/1. Kamla Kapoor, the deceased, represented by her legal representative, shall hereinafter be called 'the plaintiff'. Original Suit No.465 of 2015, which shall, for the sake of brevity, be called hereinafter as 'the suit of 2015', was instituted by the plaintiff against Neelam Kapoor, widow of the late Rajan Kapoor, Ravindra Kapoor and Pallavi Kapoor, the son and the daughter respectively of the late Rajan Kapoor, besides Ritika Madan, widow of the late Pradeep Madan. Apart from four of these defendants, the fifth defendant to the suit of 2015 are the New Okhla Industrial Development Authority, represented by its Chairman/ Chief Executive Officer. The plaintiff's case in the suit of 2015 is that she is the co-owner in possession of a house bearing No. C-60, Sector 50, NOIDA, District Gautam Buddh Nagar. It is the plaintiff's case that she is co-owner of the house aforesaid to the extent of a 3/4th share. The house, above detailed, shall hereinafter be called 'the suit property'.

3. Shorn of unnecessary detail, suffice it to say that defendant No.5 to the suit of 2015, who are respondent No.5 to this revision, the New Okhla Industrial Development Authority, represented by its Chairman/ Chief Executive Officer (for short, 'the NOIDA'), allotted land comprising the suit property in favour of one Sant Lal Sodhi on 21.08.1996. A registered lease deed was executed in favour of Sodhi by the NOIDA on 27.11.1997. On the 4th of April, 2001, Sodhi, through the holder of his power of attorney, Deepak Jain, executed an agreement to sell in favour of the plaintiff, her son Rajan Kapoor and the plaintiff's husband Maharaj Kumar Kapoor. In adherence to the covenants of the agreement to sell last mentioned, Sodhi's attorney, Deepak Jain, executed a deed of transfer dated 23.04.2001 in favour of the plaintiff, Rajan Kapoor and Maharaj Kumar Kapoor, which was duly registered. On and after 23.04.2001, the plaintiff has been in possession of the suit property as its co-owner. Her name was mutated in the records of the NOIDA on 26.06.2001 as a co-owner of the suit property. As ill luck would have it, on 25.06.2013, the plaintiff's son Rajan Kapoor died. He left behind four heirs and LRs, comprising his wife, a son and a daughter, who are defendant Nos.1, 2 and 3 to the suit of 2015 and respondent Nos.1, 2 and 3 to the revision. The fourth LR that Rajan Kapoor left behind was the plaintiff herself, being the deceased's mother. Defendants Nos. 1 to 4 shall hereinafter be called ‘the defendants’.

4. The plaintiff's husband, Maharaj Kumar Kapoor left behind a registered will dated 10.10.2013 in her favour to the effect that in the event of his demise, the entire one-third share in the suit property belonging to him would go to the plaintiff. The plaintiff's son's share was also to the extent of one-third in the suit property and upon its equal division amongst his four heirs, a 1/12th was added to the plaintiff's existing 1/3rd share. The plaintiff, thus, had a 5/12th share according to her, after her son's demise. Apparently, after her husband's death, on the foot of the registered will dated 10.10.2013, the plaintiff sought a declaration to the effect that the registered will dated 10.10.2013 executed by Maharaj Kumar Kapoor in favour of the plaintiff was Maharaj Kumar's last will and testament, in terms of which succession opened out.

5. A declarator