1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION LETTERS PATENT APPEAL NO.203 OF 2009 IN WRIT PETITION NO.6485 OF 2008 Sanjeev Indravadan Dani. ) Aged 48 years, residing at ) B/13, 2nd floor, Soami Nagar ) (South), Outer Ring Road, ) New Delhi-110017. )..Appellant. v/s. Mrs.. Rupal Sanjeev Dani, ) Aged 42 years, Residing at ) 302, Aseem, J.P.Marg, Worli, ) Mumbai-400 018. )..Respondent. Ms.Kumud Bhatia for the appellant. Mr.Vikramaditya Deshmukh for the Respondent. CORAM:- SWATANTER KUMAR,CJ. AND A.M.KHANWILKAR, J RESERVED ON :- SEPTEMBER 23, 2009. PRONOUNCED ON : NOVEMBER 12, 2009 JUDGMENT:(Per A.M.Khanwilkar,J) 1. Heard. Admit. 2. Counsel for the Respondent waives service. As short question is involved, Appeal was proceeded for final hearing forthwith at admission 2 stage by consent. 3. This Appeal takes exception to the Judgment and order passed by the learned Single Judge of this Court dated 10th November, 2008 in Writ Petition No.6485 of 2008 thereby dismissing the Writ Petition preferred by the Appellant and confirming the order passed by the Family Court, Bandra, Mumbai dated 21st June, 2008 below Exh. 5 and 7 in M.J.Petition No.A-218 of 2007. 4. Briefly stated, the Appellant(husband) instituted a Petition for restitution of conjugal rights, being M.J.Petition No.A-1773 of 2004, in the Family Court of Bombay at Bandra against the Respondent(wife) some time on 2nd November, 2004, on the assertion that they had solemnised their marriage on 27th November, 1988 and that two children were born out of the said wedlock, i.e., one daughter and one son now aged about 17 and 7 years respectively. It is stated that the Appellant, on account of his employment with a multinational firm was posted at Delhi as “Director” of Pharma Division, in March, 2001. The said posting was the result of natural progression in Appellant’s career. However, after the Appellant shifted to Delhi, the Respondent was reluctant to stay with him alongwith 3 two children at Delhi for untenable reasons. As a result, differences arose between them and eventually the Respondent left the matrimonial home alongwith two children and refused to join the Appellant at Delhi. It is in this backdrop Petition for restitution of conjugal rights has been instituted by the Appellant. The Respondent filed her written statement in the said proceedings on 27th September, 2005, contesting the claim of the Appellant. According to the Respondent, it is the Appellant who was responsible for throwing out her from her matrimonial home. As a result of which, she was forced to stay at Mumbai alongwith her two children. It is not necessary to elaborate on the plea taken by both the sides on the merits of the controversy for answering the issue that arises for our consideration in the present proceedings. 5. The Respondent thereafter, filed a Petition before the Family Court of Bombay at Bandra being Petition No.A-218 of 2007 for divorce on the ground of cruelty and desertion. That Petition was filed on 16th January, 2007. The Appellant therefore, filed application(Exh.5) before the Family Court praying for stay of the subsequent Petition filed by the Respondent, by invoking provisions of Section 10 of the CPC. This Application was filed on 26th April, 2007. In the said Application, the Appellant has stated 4 that the Respondent in response to his Petition for restitution of conjugal rights filed written statement belatedly, after the period of 90 days prescribed by law. In the said written statement however, she has merely opposed the grant of relief of restitution of conjugal rights under section 9 of the Hindu Marriage Act. According to the Appellant, in the written statement filed by the Respondent, no plea is taken about the alleged cruelty prior to April, 2002 pertaining to time period for which the Respondent had opportunity to plead the same in the Written Statement. Those matters have been referred to in the subsequent Petition filed by the Respondent praying for divorce under section 13(IA) and (IB) of the Hindu Marriage Act. According to the Appellant, the subsequent petition filed by the Respondent is obviously a counter blast to the Petition filed by the Appellant for relief of restitution of conjugal rights. It is then stated in the said application (Exh.5) that having regard to the plea taken in both the proceedings and with regard to the reliefs claimed in the said Petitions, in order to avoid conflicting decisions, in the interest of justice, it is appropriate that subsequent Petition filed by the Respondent after more than two years from the date of institution of the Petition by the Appellant, be stayed. The Appellant has also asserted that the parties to both the Petitions are the same. The issues involved in both the Petitions are directly 5 and substantially the same and having regard to Section 10 of the CPC, the subsequent Petition filed by the Respondent should be stayed. The Appellant has further asserted that he is confident that he has a fair chance of getting decree for restitution of conjugal rights, which would allow a period of one year for the parties for re-approachment, which has more weight than the relief claimed by the Respondent as it would facilitate the objectives of the Family Courts Act to sustain the institution of marriage. Therefore, if the subsequent Petition of the Respondent is not stayed, the parties would miss that golden opportunity. Moreover, entertaining subsequent Petition filed by the Respondent would result in giving opportunity to the Respondent to file further written statement. For all these reasons, it was prayed that the Petition filed by the Respondent herein being M.J.Petition No.A-218 of 2007 should be stayed. 6. The Respondent opposed the said application and also filed application for clubbing of the two Petitions, which application was treated as Exh.7. That application was filed by the Respondent on 29th September, 2007. In this application, it is stated that in both the Petitions the parties will be leading common evidence. As a result, to save the precious time of the Court, it is essential that both the petitions are clubbed together. The 6 Respondent has further asserted that in the event the Petitions are not clubbed, the Court will have to perform double exercise of conducting two trials of the Petitions seperately where the entire evidence and document will be the common. On this assertion, the Respondent prayed that both the Petitions filed by the Appellant as well as the Respondent respectively being Petition No.A-218/2007 and A-1773/2004 be clubbed and proceeded together. 7. The Family Court disposed of both the Applications preferred by the Appellant as well as the Respondent, Exh.5 and Exh.7 respectively, together by common Judgment and Order dated 19th June, 2008. The Family Court opined that pleadings or defence in respect of the two Petitions are same, though the parties are seeking completely different reliefs. It further held that the Petition for restitution of conjugal rights was pending for almost last four years. Therefore, to avoid further delay and multiplicity of trial, it would be just and proper to decide both the Petitions together even by recording common evidence in both the Petitions. To buttress this opinion, the Family Court has relied on the decision of our High Court reported in II (2007) DMC 734: 2007(3) BCR 85 in the case of Kalpana Patil V/s. Bharat Patil. Even in that case the husband had filed petition for 7 restitution of conjugal rights and wife had filed petition for dissolution of marriage. The wife filed application for stay of suit filed by the husband, which was rejected on the ground that the parties are same, evidence would be same. Consistent with that view directions to consolidate both the petitions and proceed with the trial of both the cases together were issued. Accordingly, application filed by the Appellant was rejected and the Application filed by the Respondent wife was allowed with direction that the parties shall try both the petitions together, by leading common evidence. 8. This decision was assailed by the Appellant before this Court by way of Writ Petition under Article 226 and 227 of the Constitution of India, which was registered as Writ Petition No.6485 of 2008. The learned Single Judge of our High Court however, dismissed the said Petition and was pleased to uphold the opinion of the Family Court of consolidation of the two petitions. The learned Single Judge in the first place analysed Section 21A of the Hindu Marriage Act and proceeded to hold that the Family Court has power to transfer the Petitions and direct their joint or consolidated trial of the two petitions. This opinion has been noted on the basis of observations of the Apex Court in the case of Guda Vijaylaxmi v/s. Guda 8 Ramchandra Sekhara Sastry reported in 1981 SC 1143. The learned Single Judge has noted that the Apex Court declined to accept the view expressed by the Nagpur Bench in the case of Priyavari Mehta v/s. Priyanath Mehta reported in AIR 1980 Bombay 337. The learned Single Judge also found that the decision relied by the Appellant in the case of Dilip V/s. Vandana reported in 1992(2) HLR 357 was distinguishable on facts and had no application to the case on hand. Significantly, this decision has not been produced before us during the hearing of this appeal. Be that as it may, the learned Single Judge has then relied on the decision of our High Court in the case of Kalpana Bharat Patil (supra) and held that opinion in that case would apply on all fours to the case on hand. Learned Single Judge has also adverted to the decision of the Apex Court in the case of Prem Lala Nahata @ Anr. V/s. Chandi Prasad Sikaria reported in (2007) 2 SCC 551 and another decision in the case of State Bank of India v/s. Ranjan Chemicals Ltd. & Anr. reported in (2007) 2 S.C.C. 97 and then proceeded to conclude that the opinion recorded by the Family Court that to obviate further delay and multiplicity of trial, it will be just and proper to decide both the Petitions together, even by recording common evidence in both the Petitions was unexceptionable. Hence, the Petition was dismissed. The above said decision is now challenged by the Appellant 9 by way of present Letters Patent Appeal. 9. According to the Appellant, consolidation of two different Petitions was impermissible as reliefs claimed by the parties were distinct and separate. In one Petition, relief was for restitution of conjugal rights under section 9 of the Hindu Marriage Act, whereas in case of the other Petition, it was for divorce on the ground of cruelty and desertion under Section 13 of the Hindu Marriage Act. Besides, the learned Single Judge has misdirected himself in relying on powers of transfer under section 23 to 25 of the Code of Civil Procedure to sustain the impugned order passed by the Family Court, inasmuch as the power of transfer cannot be equated with the power of consolidation of Petitions and/or joint trial of two different petitions. It is submitted that the Family Court has no jurisdiction to consolidate two distinct Petitions and try jointly when the reliefs claimed in both the Petitions are materially different. It is contended that the legislature has restricted consolidation of two Petitions only in relation to the reliefs of judicial separation and divorce under section 13 of the Hindu Marriage Act. As a result, power under sections 23 to 25 of the Code of Civil Procedure are inapplicable in respect of proceedings under the Hindu Marriage Act. Moreover, recourse cannot be taken to provisions of Sections 10 23 to 25 as both the Petitions in the present case were pending before the same court for distinct reliefs. The principal grievance of the Appellant is that the Family Court has no jurisdiction to consolidate two petitions which are filed under section 9 and section 13 respectively by the parties. The Appellant has placed reliance on the exposition of the Apex Court in the case of Durgesh Sharma V/s. Jayshree Sharma[2009(1) Mh.L.J. Page 66(SC): 2008(9) SCC 648]. According to the Appellant, since the two Petitions were between the same parties and the plea taken by the parties in both the Petitions was identical; whereas the Respondent was claiming relief of divorce on the ground of cruelty and desertion by way of counter blast to the Petition filed by the Appellant restitution of conjugal rights, it was just and proper to stay the subsequent petition filed by the Respondent wife having regard to the purport of section 10 of the Code of Civil Procedure. Moreso, when the Respondent did not ask for relief of divorce in the written statement which has been filed by her to oppose the Appellant’s Petition. The Appellant has also referred to the decision in the case of Jagraj Singh Vs. Birpal Kaur reported in AIR 2007 SC 2083, which takes the view that the Hindu Marriage Act, 1955 is a Special act dealing with the provisions relating to marriage, restitution of conjugal rights, divorce, judicial separation and also nullity of marriage. It is further 11 observed that keeping in mind the provisions of Order XXXIIA, Rule 3 of the Code of Civil Procedure, the Court was obliged to make efforts for settlement of family disputes. As the approach of a Court of law in matrimonial matters ought to be much more constructive, affirmative and productive rather than abstract, theoretical and doctrinaire. The Appellant has also adverted to the decision of the Apex Court in Guda Vijayalakshmi(supra) to contend that the same is distinguishable as in that case issue was for transfer of husband’s petition for divorce pending before another Court under Section 25 of the Code of Civil Procedure; whereas in the present case both the petitions were pending before one Family Court. In other words, the real issue in the present petition is whether the Family Court has power to consolidate the two petitions pending before it. According to the Appellant, having regard to the scheme of Section 21A of the Hindu Marriage Act, the Family Court could not have taken recourse to inherent powers under section 151 of the Code of Civil Procedure. For that reliance is placed on the dictum of the Apex Court in the case of Durgesh Sharma (supra). 10. On the other hand, the Counsel for the Respondent has in the first place, raised preliminary objection regarding maintainability of the present 12 appeal. On merits, it is contended that no fault can be found with the discretionary order passed by the Family Court, which was necessitated in the fact situation of the present case. According to the Respondent, the Family Court had sufficient power to consolidate trial of two separate Petitions filed by the husband as well as wife for relief of restitution of conjugal rights and divorce as the parties were common as well as defence was common and moreso, to avoid further delay and multiplicity of trial, the order as passed by the Family Court was inevitable. 11. Having considered the rival submissions, the first question that we propose to answer at the outset is in the context of the preliminary objection regarding maintainability of the present appeal. According to the Respondent, although the Appellant has described the Writ Petition as one filed under Article 226 and 227 of the Constitution of India, however, in substance, the same was one under Article 227 of the Constitution of India, against which remedy of present appeal under Letters Patent is not available. According to the Respondent, even the learned Single Judge has proceeded to decide the said Writ Petition as if it were to be under Article 227 of the Constitution. On the other hand, Counsel for the Appellant would contend that not only the Appellant instituted Petition under Article 13 226 and 227 of the Constitution of India, but having regard to the nature of controversy raised it was clearly ascribable to jurisdiction under Article 226 of the Constitution. Moreover, it was not open for this Court to enquire into as to whether the Petition was one under Article 226 and 227 of the Constitution of India. In support of these submissions, parties have placed reliance on the decision of the Apex Court as well as of our Court. Reliance is placed on the decision in the case of State of M.P. & ors. Vs. Visan Kumar Shiv Charan Lal reported in 2009 All SCR 15. In paragraph-3 of the said decision, the Apex Court has observed that the High Court seems to have gone by the nomenclature description of the writ petition to be one under Article 227 of the Constitution and the High Court did not consider the nature of the controversy and the prayer involved in the Writ Petition. According to the Appellant, even if the Writ Petition was to be filed under Article 227 of the Constitution, Letters Patent Appeal would be maintainable against the decision in the said Petition having regard to the nature of controversy and prayer involved in the Writ Petition. The Apex Court accordingly, reversed the opinion of the High Court and proceeded to hold that the Letters Patent Appeal was maintainable. In the said decision, besides referring to its earlier decisions in the case of Sushilabai Laxminarayan Mudliyar vs. Nihalchand Waghajibhai Shaha[1993 14 Supp.(1) SCC 11], Mangalbhai & ors. vs. Radhyshyam (Dr.) [AIR 1993 SC 806], Lokmat Newspapers(P) Ltd. Vs. Shankarprasad[1999(6) SCC 275], Surya Dev Rai vs. Ram Chander Rai & ors.[AIR 2003 SC 3044] and lastly in M/s. M.M.T.C. Ltd. Vs. Commissioner of Commercial Tax & ors.[2008(13) SCALE 682], reference is also made to the decision of the Division Bench of our High Court in the case of Mansaram Sampat Patil since deceased through his Lrs. Smt.Banubai Mansaram Patil & ors. vs. Sambhu Harchand Chaudhary since deceased through his L.Rs. Smt. Sumanbai w/o Harchand Chaudhary & Ors.[2004(4) Mh.L.J. 1105]. It has also adverted to catena of reported decisions and restated the legal position in paragraph-15 onwards of the said decision. Reference is also made to another decision of the Division Bench of our High Court in the case of Uttam A. Gawali Vs. State of Maharashtra reported in 2006 (3) Bom C.R. Page 915. In paragraph-13 of this decision, the settled legal position with regard to the issue of maintainability of the LPA is restated. In other words, the legal position about the maintainability of the LPA is no more res integra. In the present case, the Writ Petition as instituted by the Appellant clearly describes the Petition as one under Article 226 and 227 of the Constitution of India. Even in the body of the Petition, in paragraph-21 that position is restated. Besides, even reliefs claimed are one for issuance 15 of writ under Article 226 of the Constitution of India. Moreover, grounds articulated in the Petition, amongst others, challenge the jurisdiction of the Family Court to consolidate trial of two separate petitions between the parties pending in the same court praying for totally different reliefs. In the present case, even if we were to proceed on the basis of the tenor of the Writ Petition, we have no hesitation in holding that the present Letters Patent Appeal is maintainable. 12. We may now turn to the merits of the grievance of the Appellant regarding the power of the Family Court to consolidate trial of two separate petitions pending before it between the same parties under section 9 and section 13 of the Hindu Marriage Act. Indeed, there is no express provision either in the Hindu Marriage Act or for that matter in the Family Courts Act or the Code of Civil Procedure, which authorises the Court to consolidate the trial of two separate Petitions pending before it. Nevertheless, such power can be exercised by the Court by invoking its inherent powers, when it is necessary for the ends of justice or to prevent abuse of the process of the Court. This position is no more res integra. The Apex Court in the case of Chitivalasa Jute Mills v. Jaypee Rewa Cement[(2004) 3 SCC 85:AIR 2004 SC 1687] held that unless specifically prohibited, the civil court has 16 inherent power to make such orders, as may be necessary for the ends of justice or to prevent abuse of the process of the Court. It is observed that consolidation of suits is ordered for meeting the ends of justice as it saves the parties from multiplicity of proceedings, delay and expenses. It is held that complete or even substantial and sufficient similarity of the issues arising for decision in two suits enables the two suits being consolidated for trial and decision. It further went on to observe that in that case, the parties are relieved of the need of adducing the same or similar documentary and oral evidence twice over in the two suits at two different trials; after the evidence having been recorded, common argument need to be addressed followed by one common judgment. Following the dictum of the Apex Court, it is open to the Family Court to direct consolidation of two Petitions while exercising its inherent powers under section 151 of the Code of Civil procedure for meeting the ends of justice. In yet another recent decision in the case of Premlata Nahta (supra), the Apex Court observed that the Court has power to consolidate the suits in appropriate cases. However, the consolidation is a process by which two or more causes or matters are by order of the Court combined or united and treated as one cause or matter. The Apex Court further expounded that the main purpose of consolidation is therefore to save costs, time and effort to make 17 the conduct of several actions more convenient by treating them as one action. It is further observed that jurisdiction to consolidate arises where there are two or more matters or causes pending in the Court and it appears to the Court that some common question of law or fact arises in both or all the suits or that the rights to relief claimed in the suits are in respect of or arises out of same transaction or series of transactions; or that for some other reason it is desirable to make an order of consolidating the suits. Notably, in the case of SBI V/s. Ranjan Chemicals Ltd. reported in (2007) 1 SCC 97, the argument considered by the Court was that order of joint trial can be passed only if there is consent of both sides. This argument did not find favour with the Apex Court. The Apex Court has held that a joint trial can be ordered when (i) if common question of law or fact arises in both the proceedings or right to relief claimed in them is in respect of or arises out of the same transaction or series of transactions, (ii) where plaintiff in one action is the same person as defendant in another action and if one action can be ordered to stand as counterclaim in the consolidated action and (iii) when the Court finds that ordering of such trial would avoid separate overlapping evidence being taken in two causes put in suit and it would be more convenient to try them together in the interest of parties and for effective trial of the causes. The Court has opined that it is 18 not necessary that all question or issues that arises should be common to both actions. In that, even if some issues and some evidence are common, it would be sufficient for a joint trial, especially when the two actions arise out of the same transaction or series of transactions. The Court unambiguously opined that the power of ordering a joint trial of causes in the court is in exercise of its inherent powers. Keeping in mind the settled legal position deduced from the above said decisions, there is hardly any scope for argument that the Family Court which undoubtedly is