IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (M/S) No. 1856 of 2010 Peter Succoro Vaz. … Petitioner. Versus Karanjit Singh S/O Sri S.P.Singh and others … Respondents. Mr. Piyush Garg, Advocate, learned counsel for the petitioner. Mr. Dharmendra Barthwal, Advocate, learned counsel for the respondent no.5. Date May 24, 2011. Hon’ble B.S.Verma, J. By means of this writ petition, the petitioner has sought a writ in the nature of certiorari quashing the order impugned dated 15-7-2010 passed by the Civil Judge (Senior Division) Dehradun whereby the application (paper no. 126-C) moved by the petitioner in Original Suit No. 641 of 2005 to consolidate the O.S. No. 641 of 2005 and O.S. No. 194 of 2008 has been rejected. 2. Briefly stated the facts giving rise to the present writ petition are that the petitioner, who is defendant no.3 in Original Suit No. 641 of 2005, moved an application to consolidate the aforesaid two suits together on the grounds that in both the suits the matter in issue is common; that the suits are pending between the same parties and that the evidence to be led in the suit would be common as well as that common questions of facts and law are involved and have to be adjudicated upon in both the suits. If the parties file documentary evidence separately in both the suits and lead oral evidence therein twice, that would unnecessarily waste the time of the court, therefore, both the suits be consolidated. 3. Learned counsel for the petitioner drew the attention of this Court to the provisions of Order IV-A of the C.P.C. (Uttar 2 Pradesh amendment applicable to the State of Uttarakhand), which is quoted below:- “1. Consolidation of suits and proceedings.- When two or more suits or proceedings are pending in the same Court, and the Court is of opinion that it is expedient in the interest of justice, it may by order direct their joint trial, whereupon all such suits and proceedings may be decided upon the evidence in all or any of such suits or proceedings” 4. Learned counsel for the petitioner has contended that the learned trial court did not consider this aspect of the matter that the property in suits was purchased from the same owner by the petitioner as well as the respondent no. 5. It has been also contended that the application has been rejected on the ground that there is a direction of the High Court given in Writ Petition (M/S) No. 2268 of 2007 by order dated 14-11-2007 to decide O.S. No. 641 of 2005 expeditiously. The trial court also observed that issues have been framed and suit is fixed at the stage of evidence, while in O.S. No. 194 of 2008, issues have yet to be framed, therefore, there is no ground to consolidate the two suits. 5. Learned counsel for the petitioner in support of his contentions has placed reliance upon the following cases:- 1. Smt. Mukesh Devi Vs. Smt. Manju Devi [2009(2) U.D., Page 308]. 2. Writ Petition (M/S) No. 336 of 2010 Jugal Kishore Gupta Vs. Satish Kumar and others, decided by this Court on 15-7- 2010. 6. In reply, the learned counsel for the respondent no.5, Mr. Dharmendra Barthwal, has placed reliance upon the judgment of Delhi High Court in the case of Bhagwati Prasad Sharma Vs. Ram Swaroop Sharma (Deceased) through L.Rs. [2002(61) DRJ, 603]. In paragraph 8 of the judgment, it has been inter alia observed as under:- 3 “But if the suits are at different stages of trial for example, in one case evidence of both the parties of one party has been concluded or substantial evidence of the plaintiff has been recorded, the court would be cautious in consolidating them unless the parties make a request and agree for reading the evidence already recorded as evidence in the other suits in which evidence has not been recorded. Ordinarily if the suits are at the same stages of trial and the issues are also the same the court should consolidate them.” 7. In view of the provisions of Order 4-A C.P.C. applicable to the State of Uttarakhand, the ratio of this judgment does not apply to the facts of the present case. Moreover, the cross- examination of the plaintiff in either suit has not yet begun. 8. Counter affidavit has been filed on behalf of the respondent no.2 to controvert the averments made in the memo of writ petition. 9. So far as the stages of the suits are concerned. In Original Suit No. 641 of 2005, after framing of the issues, affidavits of the plaintiff have been filed. In the subsequent suit O.S. No. 194 of 2008, the Issues have also been framed on 26-8-2010 during the pendency of the present writ petition. In the subsequent suit also, the evidence has to be adduced by the plaintiff. 10. The learned trial court while deciding the application (paper no. 126-C) did not consider this aspect that the land for which cancellation of sale deed has been sought by the other party is the same. The petitioner has filed the suit (O.S. No. 194 of 2008) for declaring the ex parte judgment and decree dated 23-4-2005 passed in Original Suit No. 221 of 2001 as illegal, null and not binding upon the petitioner while the respondent no.2-Satya Parkash Aggarwal filed the suit bearing O.S. No. 641 of 2005 for cancellation of the sale deed dated 7-11-2000 executed in favour of 4 the respondent no.1 as well as the sale deed executed in favour of the petitioner. Therefore, the agreement, which was executed in favour of the respondent no.2 as per averment made in the counter affidavit was in respect of the same land. It is an admitted fact that both the suits are pending in the same court. 11. In view of the judgment rendered by this Court in Writ Petition No. 336 of 2010 (M/S) and as per provisions of Order 4-A of the Code of Civil Procedure, the learned trial court, should have considered the fact that the property in question in both the suits is the same, the parties to the suit are the same and the vendor is the same and that the evidence to be led in both the suits is similar, therefore, to avoid conflicting judgments in both the suits and in the interest of justice both the suits ought to have been consolidated together. In this view of the matter, the trial court has committed a manifest error of law in not consolidating the two suits. Consequently, the writ petition deserves to be allowed. 12. The writ petition is allowed. Costs easy. The impugned order dated 15-7-2010 passed by the trial court is set aside. The application of the petitioner (paper no. 126-C) is allowed. The trial court is directed to consolidate Original Suit No. 641 of 2005 and Original Suit No. 194 of 2008. O.S. No. 641 of 2005 shall be the leading case. (B.S.Verma, J.) RCP