Col. Suresh Chand & Another v. Shri Satish Dayal

1. Whether the Reporters of local papers may be allowed to see the judgment?

2. To be referred to the Reporter or not? Yes

3. Whether the judgment should be reported in the Digest? Yes INDERMEET KAUR, J.

1. This is an application filed under Section 151 CPC by the defendant seeking consolidation of the present suits i.e. CS(OS) No.2319/2006 and CS(OS) No.1963/2006 (which suits stand consolidated vide order dated 25.04.2007) with the Test Cases 2010:DHC:504 No.55/2006 and Test. Case No.16/2008(which test cases stand consolidated vide order dated 21.12.2008)

2. CS(OS) No.1963/2006 titled as Satish Dayal Vs. Col. Suresh Chand & Another has been filed by Satish Dayal seeking partition from the Col. Suresh Chand and Smt. Usha Kumar of suit properties i.e. the properties bearing (i) no. 1944-51, Ward No.2, Shanker Terrace, Chandani Chowk, Delhi-6 as also (ii) property E-34, Pachsheel Park, New Delhi.

3. The second suit i.e. the CS(OS) No.2319/2006 titled as Col. Suresh Chand & Another Vs. Satish Dayal is a suit for partition of the properties of the HUF of the deceased Yogeshwar Dayal, details of which have been given in Annexure A of the plaint. They are four properties; besides the first aforementioned property (in sub clause(i) of para 2 supra)) may also include (i) property no.20, Sadhna Enclave, New Delhi (ii) property No. 1, Bharti Colony, Delhi, and (iii) land measuring 325 sq. yards adjacent to 20, Sadhna Enclave, Delhi.

4. Parties to the said suits are siblings and children of the deceased Yogeshwar Dayal.

5. The said two suits i.e. CS(OS) No.2319/2006 and CS(OS) No.1963/2006 were ordered to be clubbed together vide order dated 25.4.2007 and CS(OS) No.2319/2006 being the more comprehensive suit, it was held that the evidence recorded in this suit will be read as evidence in the connected suit as well i.e. CS(OS) No.1963/2006.

6. Test Cases No.55/2006 is based on the registered will dated 22.06.2005 and codicil dated 07.01.2006 of the deceased Yogeshwar Dayal. Test. Case No.16/2008 is based on an unregistered will dated 5.3.2006 of the deceased. Both the two said two test cases stand consolidated vide order dated 21.20.2008 wherein it was held that the Test.Case No.16/2008 will be treated as the leading case for the purpose of recording evidence.

7. It is pointed out by learned counsel for the applicant that the issues framed in the present suit on 18.8.2008 would require evidence to be led on the issue of the two wills propounded by to the respective parties i.e. the will forming the subject matter of the Test.Case No.55/2006 and the will being the subject matter of the Test.Case No.16/2008. Reference is made of issue no.7 which reads as follows:- “What is the share of the parties to the suit in the assets of the HUF? OPP”

8. It is submitted that this issue cannot be decided unless the two wills set up by the respective parties of late Yogeshwar Dayal are decided. It would be an exercise in futility if the evidence which is required to be led in the Test. Cases is to be repeated and reiterated in the present case as well; in these circumstances an order praying for clubbing of the said Test Cases with the said suits is prayed for.

9. Prayer has been opposed.

10. It is stated that the whole purpose of filing this application is to delay the probate cases. It is pointed out that in probate cases the evidence which is to be led is of a minimal nature. It would only relate to the capacity of the testator to execute prove the will and if the said will was made in accordance with law. In the pending suits which are suits for partition and rendition of accounts; in order to prove the issue as to whether the suit properties were the HUF properties of the deceased or not mani-fold evidence would be required and this would delay the probate cases unnecessarily on which adjudication can come forthwith as the matter has already reached the stage of evidence. It is stated that affidavit by way of evidence of the petitioner has already been filed and it is only to be listed for cross-examination of the witnesses of the petitioner and who would not be more than two witnesses.

11. This application has been filed under Section 151 of the Code of Civil Procedure wherein the inherent powers of this Court have been invoked. The Code of Civil Procedure does not specifically speak of consolidation of suits but the same can be done under this provision of law. Powers have to be exercised fairly, to meet ends of justice and to prevent an abuse of the process of the Court. Consolidation of suits is to be ordered if it saves the parties from multiplicity of proceedings, delay and expenses. Complete or substantial and sufficient similarity of issues arising for decision in the two suits enables the two suits being consolidated for trial and decision. Evidence having been recorded, common arguments need be addressed followed by a common judgment. However, where the consolidation of suits would result in misjoinder of the cause of action or where the application has been filed at a late stage or where it has been filed with an ulterior purpose to delay the proceedings in the suits sought to be consolidated, the Court in its discretion would be justified in rejecting such an application.

12. In the instant case, the two suits which have been ordered to be clubbed together i.e. CS(OS) No.2319/2006 and CS(OS) No.1963/2006 were counter suits filed between the family members of the late Yogeshwar Dayal i.e. the two brothers and one sister; they relate to the properties left by deceased father and it has to be decided as to whether they form a part of the HUF of the deceased. In the main suit i.e. suit No. 2139 evidence of the plaintiff is yet to begin. There are seven issues which have been framed in this case. The evidence to be led on each of these issues would encompass the factum as to whether the properties left by the deceased were HUF properties or not; there are five properties as have been detailed above; the nature of the evidence sought to be led in these suits would be different and distinct from the evidence which is to be led in the Test. Cases. In a Test. Case, the evidence is limited; scope of a test case being narrowed only as to whether the testator had left and executed the will in dispute voluntarily; whether he had the capacity to execute the will. It is pointed out that apart from the petitioner, only one more witness i.e. the attesting witness would be required to be examined.