THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR THE RECORDS PERTAINING TO THE IMPUGNED ORDER DATED 17.01.2022 ON I.A.NO.37 AND ORDER DATED 07.12.2021 PASSED IN O.S.NO.189/2002 AT ANNEXURE-A AND B RESPECTIVELY ON THE FILE OF THE LEARNED SENIOR CIVIL JUDGE AND JMFC, CHANNARAYAPATNA. QUASH THE IMPUGNED ORDER DATED 17.01.2022 ON I.A.NO.37 AND ORDER DATED 07.12.2021 IN SO FAR AS DIRECTING THE PARTIES TO ADDUCE EVIDENCE IN O.S.NO.189/2002 PASSED IN O.S.NO.189/2002 BY LEARNED SENIOR CIVIL JUDGE AND JMFC, CHANNARAYAPATNA, AT ANNEXURE-A AND B AND CONSEQUENTLY TO ALLOW I.A.NO.37 FILED BY THE PETITIONER /PLAINTIFF UNDER SECTION 151 OF CODE OF CIVIL PROCEDURE BY ALLOWING THIS WRIT PETITION & ETC.

THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL

ORAL ORDER

This petition is filed challenging the order dated 17.01.2022 passed on IA.No.37 and order dated 07.12.2021 in OS.No.189/2002 by the Senior Civil Judge and JMFC, Channarayapatna (for short ‘the trial Court’).

2. Smt.Bharathi M., learned counsel for Sri.Venkatesh R. Bhagat, learned counsel for the petitioner submits that the petitioner herein has filed a suit in OS.No.189/2002 for a relief of declaration and other consequential reliefs in respect of certain properties. It is submitted that respondent No.3(c) herein has filed OS.No.57/2013 for a relief of partition and separate possession with regard to certain properties, claiming to be joint family properties. The trial Court, vide order dated 07.12.2021 ordered to consolidate both suits and further ordered to record common evidence in both the suits. It is further submitted that the nature of suits is altogether different. The petitioner is claiming that the properties in his suit are self acquired properties, therefore, consolidation and order for common evidence is impermissible. Hence, an application was filed to modify the order dated 07.12.2021, which was erroneously rejected by the trial Court. It is also submitted that consolidation would result in unnecessary delay in the disposal of the suit filed by the petitioner and the issues being different, both suits cannot be consolidated, and they are required to be tried independently. Accordingly, she seeks to allow the petition.

3. Per contra, Sri.C.S.Prasanna Kumar, learned counsel appearing for respondent Nos.1 and 3(a), Sri.Baluvinay T.V., learned counsel for respondent No.2 and Sri.Sunil M.V., learned counsel for respondent No.3(c) support the order of the trial Court and submit that the subject matter in both suits is one and the same, parties in both the suits are common, though the reliefs claimed are different. It is submitted that if the trial in both the suits are allowed to go independently, then there is a likelihood of divergent opinion being recorded in both the suits which will lead to further complications. Therefore, it would be appropriate to try both the suits by one Court and record its finding as per the prayers sought in the suits. Hence, they seek to dismiss the petition.

4. I have heard the arguments on both sides and perused the material available on record.

5. It is to be noticed that the petitioner herein has filed OS.No.189/2002 seeking a declaration that he is the absolute owner of the suit schedule properties along with other consequential reliefs. The respondent No.3(c), on the other hand, filed a suit in OS.No.57/2013 seeking partition and separate possession of various properties, claiming to be the joint family properties in which she being a co-parcener, is entitled to a share. The trial Court vide order dated 07.12.2021 in OS.No.189/2002 ordered for consolidation of the suits and for joint trial. The order sheet indicates that the parties had proceeded to record evidence in part and thereafter, the petitioner herein filed an application under Section 151 of the Code of Civil Procedure, 1908 (for short ‘CPC’