Malti Vahuji vs Maharaj Shri Natwargopalji Goswami and Others

A.S. Qureshi, J.—Rule. Mr. K.G. Vakharia appears for respondents and waives notice.

This Civil Application is filed on behalf of the petitioners who are the original defendant Nos. 1 to 3 in the suit pending before the trial Court. The reliefs claimed in the petition are that certain clarifications are sought in the earlier order passed by this Court on 28-12-1982. Mr. A.H. Mehta, the learned Counsel for the petitioners has urged that as per the directions given by this Court, the learned Additional District Judge, Porbandar, is proceeding with the hearing of the applications for interim orders in the suit pending before him. Mr. Mehta says that his clients had given an application Exh. 89 before the learned trial Judge requesting that his application Exh, 58 pertaining to the probate may be heard before the aforesaid applications filed in the suit of the present respondents. Application Exh. 89 has been rejected by the trial Court on the ground that the two applications filed by the respective plaintiffs of the suits are of different nature and that the application Exh. 9 filed in the suit by the present respondents which is for hearing before the Court as per the directions given by this Court, would be heard and decided before the application Exh. 58 of the present petitioners is taken up.

Mr. A.H. Mehta at the time of the arguments has urged that he would not press for his application being heard and disposed of before that of the present respondents. He would be satisfied if both these applications are heard together and may be disposed of by separate orders. The reason given by Mr. Mehta is that when these two applications are heard together the Court will have a comprehensive picture and may decide each application on merit after having an over-all picture before it.

3.1 Mr. K.G. Vakharia, the learned Counsel for the respondents has urged that the application Exh. 89 filed by the present petitioners before the trial Court is not maintainable because, the application purports to have been filed u/s 10 of the CPC and he urges that the said Section 10 is not applicable to interlocutory application. Mr. Vakharia has relied on the decision in Senaji Kapurchcmd and Ors. v. Pannaji Devichand AIR 1922 Bom 276 and urged that in the interlocutory application the court has no power to direct the hearing of different applications filed in different suits. Mr. Vakharia has also relied on the decision of the Supreme Court in Manohar Lal Chopra Vs. Rai Bahadur Rao Raja Seth Hiralal, to point out that Section 10 of the CPC would be applicable to proceedings in the suit only and that the Court would have no power to hear interlocutory application filed in two different suits together. Mr. Vakharia also relied on the same decision for pointing out that the Court would not be justified in using its inherent powers for directing that the said interlocutory applications may be heard together.

The principle laid down in the aforesaid two decisions is quite correct and this Court is in respectful agreement with the same. In any case the aforesaid two decisions are binding on this Court.

Apart from the aforesaid two authorities it is clear on the facts of the case and the averments made in the application Exh. 89 that the subject-matter of the aforesaid two interlocutory applications is quite different from each other and it is neither necessary nor proper to direct that these two interlocutory applications may be heard together. Although the subject-matter of both the suits is the same property the interim relief claimed in the application Exh. 9 filed in the suit of the present respondents is for the appointment of a receiver, whereas the application Exh. 58 filed in the suit of the present petitioners is for obtaining stay of the suit of the present respondents. The order that the Court may pass in one application would be totally independent of the order which may be passed in the other application. Hence it is not necessary nor convenient on the facts of the present case to hear the said two applications for interim relief to be heard and disposed of together. In any case no prejudice is likely to be caused to either party if the aforesaid two applications are heard and disposed of separately. Hence the impugned order of the trial Court is upheld. The trial Court is directed to take up the aforesaid application Exh. 58 soon after the application Exh. 9 is disposed of by an order. The trial Court is further directed to dispose of the aforesaid two applications for interim relief in the aforementioned two suits as expeditiously as possible preferably on or before 28th February, 1983. Rule is discharged with no order as to costs.