1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Writ Petition No.3254 of 2009 1. RAJIV MATHURADAS VITTHALANI . R/O AKOLA .. Petitioner/s VERSUS 1. M.S.E.B., THR EXE. ENGINEER, AKOLA AND OTHER . AKOLA 2. SUPERINTENDING ENG. MSEB, AKOLA VIDYUT BHAWAN, AKOLA 3. JR. ENGINEER, FUSE CALL CENTER, MSEDCL, AKOLA 4. MUNICIPAL COUNCIL, AKOLA THR COMMISSIONER, GANDHI ROAD, AKOLA 5. SHARAD NATHMAL GANDHI 2 R/O SAMBHAV APRT. MG RAOD, AKOLA .. Respondent/s Office Notes, Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders and Registrar's order Shri M.S. Deshpande, Advocate for Petitioner. Coram : R.C. Chavan, J. Dated : 6 th August, 2009 This petition is directed against the order of the learned Principal District Judge, Akola, rejecting the application of the petitioner to bring together four civil suits bearing Regular Civil Suit Nos.485 of 2002, 330 of 1995, 463 of 1995 and 680 of 1995, holding that the application would result in delay in deciding the older suits. The learned counsel for the petitioner relies on two judgments. In State Bank of India v. Ranjan Chemicals Ltd. and another, reported at (2007) 1 SCC 97, the Supreme Court was considering the circumstances in which a joint trial could be ordered. The Court held in paras 10 and 11 of its judgment as under : 3 “10. A joint trial can be ordered by the court if it appears to it that some common question of law or fact arises in both proceedings or that the right to relief claimed in them are in respect of or arise out of the same transaction or series of transactions or that for some other reason it is desirable to make an order for joint trial. Where the plaintiff in one action is the same person as the defendant in another action, if one action can be ordered to stand as a counterclaim in the consolidated action, a joint trial can be ordered. An order for joint trial is considered to be useful in that, it will save the expenses of two attendances by the counsel and witnesses and the trial Judge will be enabled to try the two actions at the same time and take common evidence in respect of both the claims. If therefore the claim made by the Company can be tried as a counterclaim by the Debt Recovery Tribunal, the court can order joint trial on the basis of the above considerations. It does not appear to be necessary that all the questions or issues that arise should be common to both actions before a 4 joint trial can be ordered. It will be sufficient if some of the issues are common and some of the evidence to be let in is also common, especially when the two actions arise out of the same transaction or series of transactions.” “11. A joint trial is ordered when a court finds that the ordering of such a trial, would avoid separate overlapping evidence being taken in the two causes put in suit and it will be more convenient to try them together in the interests of the parties and in the interests of an effective trial of the causes. This power inheres in the court as an inherent power. It is not possible to accept the argument that every time the court transfers a suit to another court or orders a joint trial, it has to have the consent of the parties. A court has the power in an appropriate case to transfer a suit for being tried with another if the circumstances warranted and justified it. In the light of our conclusion that the claim of the Company in the suit could be considered to be a claim for set-off 5 and a counterclaim within the meaning of Section 19 of the Act, the only question is whether in the interests of justice, convenience of parties and avoidance of multiplicity of proceedings, the suit should be transferred to the Debt Recovery Tribunal for being tried jointly with the application filed by the Bank as a cross-suit. Obviously, the proceedings before the Debt Recovery Tribunal could not be transferred to the civil court since that is a proceeding before a tribunal specially constituted by the Act and the same has to be tried only in the manner provided by that Act and by the Tribunal created by that Act. Therefore, the only other alternative would be to transfer the suit to the Tribunal in case that is found warranted or justified.” In M/s. P.T. Anklesaria & Co. v. Union of India, reported at 1974 Mh.L.J. 334, again this Court was considering the consolidation of suits and observed that if there is sufficient unity or similarity in the subject matter of two suits – one filed by the plaintiff against the defendant, and another filed by the defendant against the plaintiff – the Court can 6 exercise its inherent powers under Section 151 of the Code of Civil Procedure and that it is not necessary that all the issues and reliefs in the two suits should be identical and that there is no necessity of consent of all the parties. The learned counsel for the petitioner was gracious in taking me through the four suits, which have been filed. The first suit, bearing Regular Civil Suit No.330 of 1995, is between the partners, which is about the right to run the partnership firm by name “Rajkotwala Food Corner”. The third suit, bearing Regular Civil Suit No.680 of 1995, is again between the partners for taking accounts. The second suit, bearing Regular Civil Suit No.463 of 1995, is again between the partners, but principally between one of the partners and the Municipal Council, about a resolution which was passed by the Municipal Council for re-allocation of the lease; and the fourth suit, bearing Regular Civil Suit No.485 of 2002, which is sought to be now tagged to the other suits, is between the petitioner and the electricity supply company. In all these suits, the other partner is also a party. Now it cannot be said that the plaintiff in one suit is the defendant in the other suit. The issues involved are not same, the reliefs claimed are also altogether different, and, therefore, joinder will unnecessarily result in mixing up the 7 issues and protract the trials, which appears to be the design of the petitioner. The learned Principal District Judge, therefore, rightly rejected the application. The petition is, therefore, dismissed. Judge. pdl