# Smt. Kamla Kapoor & Anr. Revisionists v. Neelam Kapoor & Ors

- **Citation:** (2023) 12 ILRA 80
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-11-23
- **Case number:** Civil Revision No. 49 of 2021
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-kamla-kapoor-anr-revisionists-v-neelam-kapoor-ors-49536
- **Pages:** 10

## Headnote

Law
-
The
Code
of
Civil
Procedure, 1908 - Section 115 - Revision,
Section 10 - Stay of Suit, Order 4A-
Consolidation of suits and proceedings -
ex debito justitiae - Section 10 of the
Code does not go to the root of the Court's
jurisdiction trying the subsequent suit, but
lays down a rule of procedure, that does
not
forbear
consolidation
and
simultaneous trial of two suits, one
instituted earlier and the other later
between the same parties involving issues
that are directly and substantially the
same.(Para -21, 22)
(B) The Code of Civil Procedure, 1908 -
Section
10
-
interplay
between the
restrictive principle in Section 10 and the
facilitative one in Order IV-A of the Code -
fundamental test to attract Section 10 -
whether on final decision being reached in
the previous suit, such decision would
operate as res judicata in the subsequent
suit or not.(Para -28)

Declaratory suit of 2015 and partition suit of
2017 pending before same Court - facts
pleaded and cause of action in Original Suit of
2017 - identical to that of suit of 2015 - relief
claimed
different

-
few
formal
facts
introduced - plaintiff sought decree for
partition of her 3/4th share with separate
possession after drawing of lots - physical
partition not possible - suit property be valued
and appropriate relief granted - permitting to
purchase defendants' share - suit of 2017
stayed by Trial Judge under Section 10 of
Code - held - all ingredients to attract bar
under Section 10 of the Code are disclosed -
aggrieved,
hence

revision.
(Para
-
2,7,8,9,15,19,20)

HELD:- Trial court's cryptic remark that Order
IV-A of the Code is only for the convenience of
recording evidence and disposing of suits is a
failure to exercise jurisdiction. This could cause
irreparable harm to the plaintiff, as the relief
claimed in the 2015 suit may conflict with the
plaintiff's cause of action. Conclusions reached
will not prevent the defendant from raising
pleas to resist the suit, as it would be open to
the Trial Court to judge on their own merits.
Trial Court has been directed to consolidate two
separate suits and expedite their trial within six
months.
Impugned
order
set
aside
and
reversed. (Para - 28,29)

Revision allowed. (E-7)

List of Cases cited:-

## Text

80 INDIAN LAW REPORTS ALLAHABAD SERIES
12. In light of the above, it cannot
be said that the proceedings under Section
54 are suit proceedings for which the
petitioner is liable to pay court fee, as such,
the order dated 28.3.2022 passed by the
U.P. Waqf Tribunal, Lucknow in Case
No.29 of 2020 is not sustainable and is
accordingly set aside.

13. The Tribunal is directed to
proceed and conclude the proceedings
expeditiously, in accordance with law.

14. The revision thus stands allowed.
----------
(2023) 12 ILRA 80
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.11.2023

BEFORE

THE HON'BLE J.J. MUNIR, J.

Civil Revision No. 49 of 2021

Smt. Kamla Kapoor & Anr. ...Revisionists
Versus
Neelam Kapoor & Ors. ...Respondents

Counsel for the Revisionists:
Sri Ashutosh Yadav, Ms. Abhilasha Singh,
Sri Shyam Lal

Counsel for the Respondents:
Sri Vikash Chandra Tiwari, Sri Abhijeet
Mukherji, Ms. Sushmita Mukherjee
(A)
Civil
Law
-
The
Code
of
Civil
Procedure, 1908 - Section 115 - Revision,
Section 10 - Stay of Suit, Order 4A-
Consolidation of suits and proceedings -
ex debito justitiae - Section 10 of the
Code does not go to the root of the Court's
jurisdiction trying the subsequent suit, but
lays down a rule of procedure, that does
not
forbear
consolidation
and
simultaneous trial of two suits, one
instituted earlier and the other later
between the same parties involving issues
that are directly and substantially the
same.(Para -21, 22)
(B) The Code of Civil Procedure, 1908 -
Section
10
-
interplay
between the
restrictive principle in Section 10 and the
facilitative one in Order IV-A of the Code -
fundamental test to attract Section 10 -
whether on final decision being reached in
the previous suit, such decision would
operate as res judicata in the subsequent
suit or not.(Para -28)

Declaratory suit of 2015 and partition suit of
2017 pending before same Court - facts
pleaded and cause of action in Original Suit of
2017 - identical to that of suit of 2015 - relief
claimed
different

-
few
formal
facts
introduced - plaintiff sought decree for
partition of her 3/4th share with separate
possession after drawing of lots - physical
partition not possible - suit property be valued
and appropriate relief granted - permitting to
purchase defendants' share - suit of 2017
stayed by Trial Judge under Section 10 of
Code - held - all ingredients to attract bar
under Section 10 of the Code are disclosed -
aggrieved,
hence

revision.
(Para
-
2,7,8,9,15,19,20)

HELD:- Trial court's cryptic remark that Order
IV-A of the Code is only for the convenience of
recording evidence and disposing of suits is a
failure to exercise jurisdiction. This could cause
irreparable harm to the plaintiff, as the relief
claimed in the 2015 suit may conflict with the
plaintiff's cause of action. Conclusions reached
will not prevent the defendant from raising
pleas to resist the suit, as it would be open to
the Trial Court to judge on their own merits.
Trial Court has been directed to consolidate two
separate suits and expedite their trial within six
months.
Impugned
order
set
aside
and
reversed. (Para - 28,29)

Revision allowed. (E-7)

List of Cases cited:-

1. Prem Lala Nahata & anr. Vs Chandi Prasad
Sikaria , (2007) 2 SCC 551
12 All. Smt. Kamla Kapoor & Anr. Vs. Neelam Kapoor & Ors.
81
2. P.P. Gupta Vs East Asiatic Co. Bom. , AIR
1960 All 184

3. Rakesh Sakseria Vs Kumud & ors. , 2016 SCC
OnLine Utt 1371

4. Mohd. Yunus & ors. Vs Rahees Ahmed,
2018 (3) ADJ 633

5. Rajendra Prasad Vs Smt. Komal Devi & ors.,
2018 (7) ADJ 292

6. Anandan Gupta Vs Navin Agarwal & ors.,
1984 SCC OnLine All 451

7. K.K. Gupta Vs Civil Judge (Sr. Div.), Gonda &
ors., 1999 SCC OnLine All 1009

8. Nasawar Ali & ors. Vs Abdul Bari & ors., 2020
(138) ALR 77

9. Sanjay Khanduja Vs Smt. Usha Devi & anr.,
2017 (8) ADJ 470

(Delivered by Hon'ble J.J. Munir, J.)

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
82 INDIAN LAW REPORTS ALLAHABAD SERIES
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 declaratory decree was also sought
in favour of the plaintiff and against the
defendant to the effect that it be declared that
the plaintiff was the holder of a 3/4th share in
the suit property. A relief of permanent
prohibitory injunction was claimed in the
plaintiff's favour and against the defendant to
the effect that all the defendants, numbering
five, be restrained from interfering with the
plaintiff's possession and use of the suit
property, and they be further restrained from
causing any third party to enter into possession
of the suit property, or any part thereof, or
mortgage it, or create third party rights therein.
The relief further claimed is that the NOIDA
be restrained from granting permission to
transfer the suit property to the defendants or
mortgaging it, without the plaintiff's consent.

6. Possibly advised that the suit that she
had instituted may not bring the desired relief,
the plaintiff, in the first instance, made an
unsuccessful attempt to seek an amendment to
the plaint giving rise to the suit of 2015 to
bring in the relief of partition; and failing in
that endeavour, instituted the present suit, that
is to say, Original Suit No. 645 of 2017 against
the same defendants (including the NOIDA),
five in number, as those in the suit of 2015.

7. The facts pleaded and the cause of
action in Original Suit No.645 of 2017 (for
short, 'the suit of 2017') is identical to that in
the suit of 2015. But, the relief claimed is
different. Here, with a few formal facts
introduced, but on an identical case as
that in the suit of 2015, the plaintiff
sought a decree for partition of her 3/4th
share with separate possession after
drawing of lots. It was also prayed that if
physical partition be not possible, the suit
property be valued and appropriate relief
granted to the plaintiff, permitting her to
purchase the defendants' share. A further
decree for mesne profits at the rate of
Rs.1,25,000/- per month was sought
against defendant Nos.1, 2 and 3 to the
suit of 2017, until such time that partition
is finally effected.

8. By the order impugned, the learned
Trial Judge has ordered the suit of 2017
stayed under Section 10 of the Code.
12 All. Smt. Kamla Kapoor & Anr. Vs. Neelam Kapoor & Ors.
83

9. Aggrieved, this revision has been
preferred by the plaintiff.

10. Heard Mr. Ashutosh Yadav,
learned Counsel for the plaintiff and Mr.
Abhijeet
Mukherjee,
learned
Counsel
appearing for the defendants.

11. It is submitted by Mr. Ashutosh
Yadav, learned Counsel for the plaintiff
that the impugned order is cryptic and nonspeaking. The Trial Judge does not say why
the provisions of Order IV-A of the Code
would not be attracted, paving way for
consolidation of the two suits. It is urged
that both the suits are pending in the same
Court, that is to say, the Civil Judge (Sr.
Div.), Gautam Budh Nagar, and can
conveniently be consolidated, tried and
decided together, invoking the provisions
of Order IV-A of the Code. The Court has
power to consolidate suits in appropriate
cases. It is impressed upon this Court by
Mr.
Yadav
that
if
the
course
of
consolidation were adopted, not only
precious time of the Trial Court would be
saved, but also costs and time of the
litigating
parties.
Consolidation
is
a
mechanism, according to learned Counsel,
which promotes convenience of parties and
the Trial Court as well. It is urged that the
jurisdiction to consolidate suits arises
where there are two or more suits pending
in the same Court and it appears to the
Court that some common questions of law
and fact arise in both suits. The learned
Counsel has relied upon the authority of the
Supreme Court in Prem Lala Nahata and
another v. Chandi Prasad Sikaria, (2007)
2 SCC 551.

12. The learned Counsel, honing his
argument, further submits that Section 10 of
the Code does not forbid consolidation of
suits. Rather, it employs the words 'No Court
shall proceed with the trial of any suit'.
Section 10 does not prevent simultaneous
hearing of a later and a previous suit, after
consolidation of the two, if the matter in issue
in both is directly and substantially the same.
Section 10 does not also take away the
inherent powers of the Court to consolidate
suits ex debito justitiae. It is urged that this
was the holding of this Court in P.P. Gupta
v. East Asiatic Co. Bombay, AIR 1960 All
184. Mr. Yadav has drawn the attention of
this Court to the decision of the Uttarakhand
High Court in Rakesh Sakseria v. Kumud
& others, 2016 SCC OnLine Utt 1371,
where the High Court consolidated two
original suits and the order under challenge,
by which proceedings of the subsequent suit
were stayed, was set aside. The learned
Counsel for the plaintiff has also called in aid
the decision of this Court in Mohammed
Yunus and others v. Rahees Ahmed, 2018
(3) ADJ 633.

13. It is emphasized that if the two suits
are consolidated and decided together, there
are no chances of conflicting opinions. In this
connection, reliance is placed upon Rajendra
Prasad v. Smt. Komal Devi and others,
2018 (7) ADJ 292. Mr. Yadav submits that
Order IV-A of the Code expressly empowers
the Trial Judge to consolidate suits, if he finds
it expedient in the interest of justice to direct
a joint trial and all such suits can then be
decided upon the evidence recorded in all or
any such proceedings. Reliance in this
connection is placed upon the decisions of
this Court in Anandan Gupta v. Navin
Agarwal and others, 1984 SCC OnLine All
451 and K.K. Gupta v. Civil Judge (Sr.
Div.), Gonda and others, 1999 SCC
OnLine All 1009.

14. Repelling the submissions of the
learned Counsel for the plaintiff, Mr.
Abhijeet Mukherjee, learned Counsel for
84 INDIAN LAW REPORTS ALLAHABAD SERIES
the defendant has urged that the moot
question involved in this case is whether
the subsequent suit, which is one for
partition, can be consolidated with the
previous suit, seeking a mere declaration of
title to the suit property, the parties and the
subject matter of the suit being the same.
Mr. Mukherjee has distinguished the
decision of this Court in P.P. Gupta
(supra) saying that the present case is not at
all one that is appropriate for consolidation
of the two suits. He impresses upon the
Court that in the present case, the plaintiff
in both the suits involved are the same,
whereas in P.P. Gupta, the facts were
completely different. In P.P. Gupta, the
plaintiff had filed the first suit in April,
1955 against the defendant-company and
subsequently, the defendant company had
filed the second suit against Gupta in
October, 1956. The parties alleged breach
of contract against each other and both suits
arose out of the same transaction.

15. Here, the suit of 2015 is one for
declaration of the plaintiff's share in the suit
property. Prior to determination of the issue
whether such share exists or not, the
plaintiff instituted the subsequent suit
seeking partition of her share in the suit
property based on the assumption that she
has that share. The plaintiff in the suit of
2015, unless she gets her title determined,
cannot get the suit property partitioned,
inasmuch as proof of her entitlement to the
share asserted is a condition precedent for
the grant of partition. The continuance of
the suit of 2017, which is a subsequent suit,
is contingent upon the findings in the suit
for declaration. It is emphasized by Mr.
Mukherjee that this Court in Nasawar Ali
and others v. Abdul Bari and others,
2020 (138) ALR 77 rejected a revision
seeking consolidation of suits on the
ground that the nature of the two suits is
different, and, relief in the subsequent suit
is contingent upon the findings recorded in
the first suit. He has drawn the attention of
the Court to the following remarks in
Nasawar Ali (supra):

"11. The trial court, in my
considered opinion, has rightly observed
that the crucial issue in both the suits is
different. In the subsequent suit, the issue is
with regard to the general power of
attorney executed by Adbul Bari in favour
of Israt Jalal Khan and whether the power
of attorney holder was authorized to
execute a sale deed. Suit No. 864 of 2018,
the revisionist-plaintiffs is for injunction,
claiming title to the land in suit.

12. Insofar as the power of
attorney is concerned, this issue is between
Abdul Bari and the power of attorney Israt
Jalal Khan. The revisionists who are the
plaintiffs in suit for injunction may have an
interest in this suit but the same is
contingent upon the dispute between the
plaintiff and his alleged power of attorney.
The case, if any, of the revisionist is at best
contingent upon the above noted main
dispute. In suit no. 864 of 2018, the
primary dispute is one of title between the
revisionist and Abdul Bari, the person who
is stated to have executed power of attorney
in favour of Israt Jalal Khan.

13. Under the circumstances, the
trial
court
has
rightly
rejected
the
application for consolidating the two suits
on the premise that the evidence in the two
suits cannot be common. I am in complete
agreement with the above reasoning given
by the trial court, while rejecting the
application filed by the revisionist."

16. It is urged by Mr. Mukherjee that
the declaratory suit and the partition suit,
therefore, are two suits of different nature.
The evidence to be adduced in the two suits
12 All. Smt. Kamla Kapoor & Anr. Vs. Neelam Kapoor & Ors.
85
is to serve an entirely different purpose. If
the same are consolidated and tried
together, there is a likelihood of grave
prejudice being caused to the defendant. On
the last mentioned issue, the learned
Counsel for the defendants has pressed in
aid the decision of this Court in Sanjay
Khanduja v. Smt. Usha Devi and
another, 2017 (8) ADJ 470, where it has
been observed:

"9. ......... Though sale-deed
dated 17.1.1985 may have been executed
pursuant to agreement dated 28.3.1984, but
the essential flavour of the two suits was
completely different and the nature of
evidence to be led in the two suits would
have to serve entirely different purpose.
Under the circumstances, once the trial
Court
exercised
its
discretion
after
recording cogent reasons that it was not a
fit case where two suits should be
consolidated, there was no jurisdictional
error in the order passed by the trial Court
which should have been interfered with in
exercise of power under Section 115 of the
Code of Civil Procedure, particularly in
view of the mandate contained in subsection (3) of Section 115 C.P.C., as
applicable in the State of U.P. vide U.P.
Act No. 14 of 2003, which provides that
superior Court shall not, under the said
Section, vary or reverse any order made
except where,-

(i) The order, if it had been made
in favour of the party applying for revision,
would have finally disposed of the suit or
other proceeding, or

(ii) the order, if allowed to stand,
would occasion a failure of justice or cause
irreparable injury to the party against
whom it is made.

10. In the instant case, by setting
aside of the order passed by the trial Court
neither suit nor proceeding would be
disposed of. Further, if the order is allowed
to stand there would be no failure of justice
because the parties can still lead there
respective
evidence
and
prove
there
respective cases. And there is no question
of causing any irreparable loss to any party
by not consolidating the suit. Because mere
inconvenience to a party would not fall
within the ambit of irreparable loss. Hence,
the revisional Court over looked the
restriction placed upon it by sub-section (3)
of Section 115 C.P.C., as applicable in the
State of U.P."

17. It is next submitted by the learned
Counsel for the defendants that the decision
in K.K. Gupta (supra) as also that in
Anandan Gupta (supra) are of no
assistance to the plaintiff, because both
these authorities lay down principle in the
context of cross-suits filed between parties,
whereas in the present case, both the suits
were filed by the same party.

18.

We
have
considered
the
submissions advanced at the Bar carefully
and perused the record.

19. The learned Trial Judge has gone
on to stay the proceedings of the
subsequent suit, holding that all the
ingredients to attract the bar under Section
10 of the Code are disclosed.

20. Here, what is noteworthy is that
both the suits are pending before the same
Court. One of the primary objectives of
Section 10 of the Code is to avoid conflict
of judgment on issues that are directly and
substantially the same, arising between the
same parties or under whom they or any of
them claim, litigating under the same title.

21. In this Court, it was held quite
long ago in P.P. Gupta that Section 10 of
86 INDIAN LAW REPORTS ALLAHABAD SERIES
the Code does not go to the root of the
Court's jurisdiction trying the subsequent
suit, but lays down a rule of procedure, that
does
not
forbear
consolidation
and
simultaneous trial of two suits, one
instituted earlier and the other later
between the same parties involving issues
that are directly and substantially the same.
In P.P. Gupta, it was held:

"26. In my view, therefore, the
words "shall not proceed in any suit" in
Sec. 10 C.P.C. were intended to bar the
separate trial of any suit in which the
matter in issue was also directly and
substantially in issue in a previously
instituted suit between the same parties in
the same court or in any other court. But
these
words
do
not
apply
to
the
simultaneous hearing of a later and an
earlier suit, after consolidation of the two,
if the matter in issue in both is directly and
substantially the same. Section 10 was not
intended to take away the inherent power of
the Court to consolidate in the interests of
justice in appropriate cases different suits
between the same parties in which the
matter in issue is substantially the same.
There is no conflict in the principle and
purpose underlying Sec. 10 and the
inherent power of the Court to consolidate
different suits in appropriate cases. Both
are meant to prevent multiplicity of
litigation between the same parties. Any
interpretation of Sec. 10 which takes away
the power of the Court to consolidate suits
would hinder the policy and purpose of
Sec. 10 itself."

22. It must be remarked that when
P.P. Gupta was decided, there was no
provision in the Code akin to Order IV-A
of the Code, which was introduced in the
First Schedule vide the Uttar Pradesh Civil
Laws (Reforms and Amendment) Act,
1976 w.e.f. December 31, 1976. The Court
in appropriate cases was always thought to
have had the inherent power to consolidate
two suits between the same parties relating
to the same subject matter, giving rise to
issues that were directly and substantially
involved in both.

23. The same principle was followed
in Anandan Gupta (supra) and K.K.
Gupta (supra). In K.K. Gupta, this Court
observed:

"5. Section 10, CPC deals with
the stay of suits on the ground that no court
shall proceed with the trial of any suit in
which matter in issue is also directly and
substantially in issue in a previously
instituted suit between the same parties and
at the same time Order 4-A of the Code of
Civil Procedure prescribes that 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 such suits or proceedings. These two
provisions were considered in Anandan
Gupta v. Navin Agarwal. [ AIR 1984 Alld.
387.] It was held that these provisions
expressly empowers the trial court to
consolidate the suits if it was expedient in
the interest of justice to direct a joint trial.
There is no doubt that looking to the facts
involved in the two suits before the trial
court, a joint trial would avoid the
multiplicity of proceedings and it would be
expedient in the interest of justice to have a
joint trial of the two suits."

24. This Court may remark at this
stage that reliance placed by the learned
Counsel for the plaintiff upon the decision
of the Supreme Court in Prem Lala
12 All. Smt. Kamla Kapoor & Anr. Vs. Neelam Kapoor & Ors.
87
Nahata (supra) is misplaced, because in
that case before their Lordships, there was
no issue about the right of the Court to
consolidate trials pitted against the bar of
res subjudice that underlies Section 10 of
the Code. Prem Lala Nahata was a case
about the power of the Court to consolidate
suits in appropriate cases generally; not in
the context of the embargo under Section
10 of the Code.

25. The decision of this Court in
Sanjay Khanduja (supra) relied upon by
the defendants may be of little assistance to
them for reason that the principle there was
laid down in the context of exercise of the
Court's revisional jurisdiction to interfere
with an order refusing to consolidate suits
on the ground that the mandate carried in
sub-Section (3) of Section 115 of the Code,
as amended in its application to the State of
Uttar Pradesh vide U.P. Act No.14 of 2003,
was not satisfied.

26. The other principle, on which the
decision in Sanjay Khanduja turned, was
that the two suits were essentially and
completely different and the evidence led
there would be for entirely different
purpose. So far as the holding on the
embargo under Section 115 of the Code is
concerned,
this
is
a
case
where
consolidation, if not permitted, may work
serious injustice to the plaintiff. The reason
is that there is a possibility that at the trial
of the first suit, where the cause of action
and the evidence is common with the
second suit, the relief claimed may or may
not be found tenable, even if the evidence
establishes the plaintiff's case. It is,
therefore, eminently a fit case, where both
suits ought to be tried together with
evidence recorded in one or the other suit,
as envisaged under Order IV-A of the
Code.

27. The other principle on which
Sanjay Khanduja is founded is also not
attracted, because a reading of the plaints
and considering the causes of action
involved in both suits spare no shadow of
doubt that not only the issues are directly
and substantially the same, relating to the
same subject matter, but would involve
identical
evidence.
The
parties
may
convince or the Court may think of
recording evidence in one or the other suit,
as said earlier, to effectively adjudicate
upon the rights of parties in both suits. The
two suits are almost the same, except for
the form of relief sought in the two being
different.

28. This Court in Rajendra Prasad
(supra), a relatively recent decision, had
occasion to consider the interplay between
the restrictive principle in Section 10 and
the facilitative one in Order IV-A of the
Code. In Rajendra Prasad, it was held:

"10. In the considered opinion of
the Court, the matter in issue in the earlier
suit is not directly and substantially in issue
in the instant suit. The object underlying
Section 10 is to prevent courts of
concurrent jurisdiction from simultaneously
trying two parallel suits in respect of the
same matter in issue so as to avoid
conflicting findings being recorded. The
fundamental test to attract Section 10 is
whether on final decision being reached in
the previous suit, such decision would
operate as res judicata in the subsequent
suit or not. The decision in the previous suit
as to whether the petitioner was competent
to execute sale deed in respect of the entire
suit property or not, would in no manner
operate as res judicata in the instant suit, as
the issues, as discussed above, are entirely
different. Identity of relief, nor identity of
the property would make Section 10
88 INDIAN LAW REPORTS ALLAHABAD SERIES
applicable, as misunderstood by the courts
below. They have acted in excess of their
jurisdiction in staying the proceedings of
the suit, by applying Section 10 CPC.

11. It is not disputed before this
Court that by an order dated 25.9.2014
passed in Civil Revision No.407 of 2014,
this Court has allowed the plea of the
petitioner for consolidation of both the suits
under Section 4-A CPC. Since both the
suits have already been consolidated and
are being tried together, therefore, even
otherwise, there is no chance of conflicting
findings being recorded."

29. Though, one of the remarks in
Rajendra Prasad does say that what
attracts Section 10 of the Code is not the
identity of the property or the relief, but the
issues that arise between parties, which
would seem to further the defendant's
contention, but the concluding remarks in
Paragraph No.11 of the report make it
pellucid that a consolidation of the two
suits would eschew the possibility of
conflicting findings on the same issue.

30. This Court would understand it in
the manner that the principle ultimately is
to avoid conflicting findings on one hand
and facilitate hearing of the two suits, one
previous and the other subsequent together,
on the other, if identical issues relating to
the same subject matter, arise between the
same parties, in order that the rights of
parties may be completely and effectively
pronounced upon by the Court.

31. This Court may further add that
the impugned order has not assigned any
reason why the Court has not considered
the option of exercising powers under
Order IV-A of the Code. The Trial Judge
has parted with the issue with a cryptic
remark to the effect that Order IV-A of the
Code is only there for the convenient and
quick recording of evidence and a quick
disposal (of suits). This remark by the Trial
Court with no reasons assigned, in our
opinion, leads to an instance of failure to
exercise jurisdiction. That this course
would occasion a failure of justice or cause
irreparable injury to the plaintiff, we think
is involved in this case because the relief
claimed in the suit of 2015 may be the
subject of much issue, if it does not accord
with the cause of action that the plaintiff
has set up in that suit. Again, this
expression of opinion of ours is not to
be understood as one on merits, but
limited to the purpose of a decision of
the present revision. It is also clarified
that the conclusions that we reached
here, will not preclude the defendant
from raising all such pleas, as may be
advised to resist the suit, other than the
one that we have decided, arising from
the fact that two successive suits have
been filed by the plaintiff. If any such
plea(s) is/are raised, it would be ever so
open to the Trial Court to judge the
same on their own merits, without being
influenced
by our remarks in this
judgment, either way.

32. Issue No.(8) is answered in the
negative with a direction that the Trial
Court will consolidate the two suits and try
them together. The trial of the two suits
shall be expedited and decided, as far as
possible within six months next.

33. In the result, this revision
succeeds and is allowed. The impugned
order dated 09.12.2019 passed by the Civil
Judge (Sr. Div.), Gautam Buddh Nagar is
hereby set aside and reversed.

34. Costs easy.
----------
12 All. Sanni Mishra @ Sanjayan Kumar Mishra Vs. State of U.P. & Ors.
89
(2023) 12 ILRA 89
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.12.2023

BEFORE

THE HON'BLE ANJANI KUMAR MISHRA, J.
THE HON'BLE ARUN KUMAR SINGH
DESHWAL, J.

Crl. Misc. Writ Petition No. 16258 of 2023

Sanni Mishra @ Sanjayan Kumar Mishra
 ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Manoj Kumar

Counsel for the Respondents:
G.A.

(A) Criminal Law - The U.P. Gangsters and
Anti-Social Activities (Prevention) Act,
1986 - Section-3(1) - The U.P. Gangster
and Anti-Social Activities (Prevention)
Rules, 2021 - Rule 5, 5(3)(a) , 8(3) , 16 ,
16(2) , 16(3) , 17 ,17(2) , 18 , 22(3) - The
Constitution of India - Article-21 -
personal liberty - Provision of this Act are
stringent
and
are
required
to
be
interpreted strictly so as to prevent
misuse on the part of State authorities - it
is necessary that while preparing the
gang-chart, date of filing of charge-sheet
must be clearly mentioned in the gangchart - pre-printed rubber seal gang-chart
should not be signed by the competent
authorities
because
the
same
shall
amount to not exercising independent
mind. (Para - 6,12)

(B) The U.P. Gangsters and Anti-Social
Activities
(Prevention)
Act,
1986
-
guidelines for preparing a gang-chart
before filing a FIR under Act - Date of
filing
the
charge-sheet
must
be
mentioned in Column-6, except in cases
under Rule 22(2) of the Gangster Rules,
2021.
Competent
authorities
must
record their satisfaction in clear words,
not
by
signing
the
printed/typed
satisfaction. Court must have material
indicating a joint meeting with the
District Police Chief and due discussion
for invocation of the Gangster Act, 1986.
(Para - 22)

Illegality in the impugned FIR - charge-sheet
filing date not mentioned in the base case -
violating Rule 8(3) - competent authorities
failed
to
apply
independent
mind
when
recommending and approving the gang-chart -
forwarded and approved on printed proforma -
violating Rules 16 and 17 .(Para -3, 6, 18, 20)

HELD:- Gang-chart did not include date of filing
the charge-sheet, despite being required by
Rule 8(3) of the Gangster Rules, 2021. All
competent authorities simply signed just below
the
printed
proforma
regarding
their
satisfaction. Violation of Rules 16 and 17 is
evident. Impugned FIR under Section-3(1) of
the Gangster Act, 1986, and its gang-chart
quashed. (Para -18, 23)

Writ Petition allowed. (E-7)

List of Cases cited:-

1. Gulam Mustafa Vs St. of Karn. , 2023 SCC
OnLine SC 603

2. Icchu Devi Choraria Vs U.O.I. & ors. , (1980)
4 SCC 531

(Delivered by Hon'ble Arun Kumar Singh
Deshwal, J.)

1. Heard Sri Manoj Kumar, learned
counsel for the petitioner and learned AGA
for the State.

2. The instant writ petition seeks
quashing of the FIR dated 03.10.2023
giving rise to Case Crime No.366 of 2023,
under Section-3(1) of the Uttar Pradesh
Gangster
and
Anti
Social
Activities
(Prevention) Act, 1986 (hereinafter referred