While setting the record straight and not leaving even a scintilla of doubt to linger or persist in the mind of anyone, the Karnataka High Court at Bengaluru in a most remarkable, robust, rational, refreshing and recent judgment titled Reeth Abraham vs Sunil Abraham in Writ Petition No. 24842 of 2022 (GM-FC) and cited in 2023 LiveLaw (Kar) 191 that was pronounced as recently as on May 24, 2023 has set aside an order that was passed by the Trial Court dismissing an application that was filed by a woman to club two pending suits for a common trial and disposal. It must be mentioned here that the suit filed by her and her ex-husband related to the same property. It also must be noted that the Single Judge Bench comprising of Hon’ble Mr Justice Krishna S Dixit allowed the women’s petition and requested the Trial Judge to allow the subject application of the petitioner for clubbing and trying both the suits together. The Court noted that the parties are ex-spouses as their marriage has been dissolved by the Family Court but challenge to the Dissolution Decree is still pending.
At the very outset, this most learned, laudable, landmark, logical and latest judgment authored by the Single Judge Bench comprising of Hon’ble Mr Justice Krishna S Dixit sets the ball in motion by first and foremost putting forth that, “This Writ Petition is filed under Articles 226 and 227 of the Constitution of India, praying to allow the above writ petition. Quash the order dated 25.11.2022 under I.A. No. 9 produced at Annexure-A passed by the Learned 1st Addl. Principal Judge Family Court Bangalore, in O.S. No. 137/2017, dismissing the I.A. u/s 151 of the CPC for clubbing of the suit along with O.S No. 220/2022, and allow the same.”
To put things in perspective, the Bench envisages in para 1 of this commendable judgment that, “The Petitioner – wife is knocking at the doors of Writ Court for assailing the order dated 25.11.2022 whereby the learned I Additional Principal Judge, Family Court at Bengaluru in O.S.No.137/2017 having dismissed her application in I.A. No.9 (Annexure-A), has refused to club two pending suits for a common trial and disposal. Learned counsel for the Petitioner vehemently argues that when the matter essentially relates to the same property and the lis is between the ex-spouses, the grant of the subject application was eminently warranted.”
As we see, the Bench states in para 2 of this noteworthy judgment that, “Learned counsel appearing for the Respondent – husband opposes the petition with equal vehemence contending that her client’s suit in O.S No. 137/2017 is for partition, whereas petitioners injunctive suit in O.S No. 220/2022 is of recent times; the issues to be decided in the former are different from those in the latter; the impugned order being the product of discretionary power, the indulgence of Writ Courts is not warranted.”
Finally and far most significantly, the Bench then concludes by holding in para 3 that, “Having heard the learned counsel for the parties and having perused the Petition papers, this Court is inclined to grant indulgence in the matter for the following reasons:
(a) The parties are ex-spouses is not in dispute, their marriage having been dissolved by the Family Court. The challenge to the Dissolution Decree in MFA No. 1850/2020, is still pending, is true. However, that pendency is irrelevant inasmuch as even if their spousal status is restored by reversing the decree of dissolution of marriage, every spouse is an independent person qua the other.
(b) The Respondent – husband has filed a Partition Suit in O.S.No.137/2017 wherein the Petitioner wife is the defendant; similarly, in Petitioners Injunctive Suit in O.S.No.220/2022 the Respondent – husband happens to be the defendant; the subject property in both the suits is the same. In both the suits, pleadings are complete and issues have been framed. The trial has begun in the partition suit, whereas it is yet to begin in the injunctive suit. Obviously, two suits will have their own issues; however, that per se, is no ground for denying the request for clubbing, especially when both the suits are at the hands of the same learned Judge.
(c) It is also true that in matter of transfer and clubbing of cases, a greater discretion lies with the Court in which they are pending. However, it is not a discretion of a Mughal Emperor. Lord Halsbury, more than century ago in SHARP vs. WAKEFIELD, 1891 AC 173, said that discretion means according to rules of reason and justice. Such an approach, at the hands of the Court below is not reflected. What prejudice would be caused to the Respondent should these suits be clubbed for the purpose of trial, is not forthcoming despite the vociferous submission of the learned counsel appearing for the Respondent.
(d) When parties are the same, property involved is same and Court in which the suits are brought is the same, ordinarily, the request for clubbing should not be denied, subject to all just exceptions, into which the argued case of the Respondent does not fit. This Court hastens to add that, there is no repugnancy between the issues framed in the partition suit and those in the injunctive suit and therefore, clubbing would save time, energy, and vyavadhaana of all the stakeholders. Of course, it is left to the Judge’s discretion to render a common or separate judgment & decree.
In view of the above, this Writ Petition succeeds; a Writ of Certiorari issues quashing the impugned order; the learned Trial Judge is request to allow the subject application of the Petitioner for clubbing and try both the suits together. Costs made easy.”
All said and done, the real essence of this most notable judgment is that the discretion of a court to transfer or club cases is not like the discretion of a Mughal emperor. To put it differently, the bottom-line of this extremely commendable judgment is as stated in this most elegant judgment itself that, “The Court must exercise this discretion according to rules of reason and justice.” We must also note that the Karnataka High Court makes it indubitably clear that, “It is also true that in matter of transfer and clubbing of cases, a greater discretion lies with the Court in which they are pending.” There can be no gainsaying that this greater discretion must be exercised by the Court most cautiously according to rules of reason and justice. No denying!
Sanjeev Sirohi