Mst. Saleema Bano and Others vs Bakshi Anwar Aftab and Others

Sunil Hali, J.—Three revision petitions have been preferred by different petitioners against Order dated 17.05.2008 passed by the learned

Principal District Judge, Srinagar for setting aside the same. The facts in all three petitions are same and are being disposed of by a common

judgment.

Four suits entitled as (a) Habla Banoo v. Bakshi Anwar Aftab and Ors.; (b) Saleema banoo v. Bakshi Anwar Aftab and Ors. (c) Nusrat banoo

v. Bakshi Anwar Aftab and Ors. and (d) Neelofar Jan v. Bakshi Anwar and Ors. came to be filed before the Court of learned Principal District

Judge, Srinagar for specific performance with consequential relief of possession in respect of building known as ""Hotel Pamposh"" with land

underneath and appurtenant thereto measuring 13 kanals and 19 marlas and 120 sft. situated at Kothibagh, Srinagar. The genesis of four suits is

that a deal was struck by the plaintiffs/petitioners with respondents 1 to 3 for the sale of Hotel Pamposh for a total consideration of Rs. 62 lakhs to

be sold to the petitioners/plaintiffs in equal shares. Besides receiving an amount of Rs. 11,000/- in cash towards the total consideration of Rs. 62

lacs, respondents also received an amount of Rs. 5.00 lacs (1.25 lacs each) from the plaintiffs and fixed Rs. 15.50 lacs as consideration for 174th

share of the Hotel Building which was duly accepted by the respondents 1 to 3. The aforesaid amount of Rs. 5.00 lac was drawn on payees

account of defendants/respondents 1 to 3 who opened an account in the Bombay Mercantile Cooperative Bank Ltd., Nallamar Road, Srinagar

and undertook to execute a sale deed in favour of the plaintiffs/petitioners for 174th share of the Hotel Pamposh. It is failure on the part of the

defendants/respondents to execute the documents which has necessitated the plaintiffs/petitioners for filing the suits.

During the pendency of four suits, Habla Bano died and in her place, her legal representatives came to be brought on record which also included

Kh. Saif-ud-Din, her husband.

Learned Principal District Judge, Srinagar vide order dated 05.12.2007 consolidated all the four suits. All the suits came up with the case

entitled Habla Banoo v. Bakshi Anwar Aftab and Ors. thereafter titled as Kh. Saif-ud-Din and Ors. v. Bakshi Anwar Aftab and Ors. The, said

suits were tried on the same date before the trial court. The order of consolidation became subject matter of challenge before the High Court by

filing revision petitions which came to be dismissed and the order dated 05.11.2007 has thus attained finality.

After the passing of order dated 05.11.2007, the applications came to be filed by the petitioners in three allied suits wherein it was contended

that the statement of one of the plaintiffs, namely, Kh. Saif-ud-Din who has appeared as own witness be kept on the three files so as to spare him

from appearing in the court again for purposes of giving his statement in other three cases. It is also contended in the applications that Kh. Saif-ud-

Din has been appointed as attorney by the petitioners/plaintiffs as such it is he who has to appear before the trial court on their behalf to pursue the

cases and also to make statement as an attorney of the petitioners/plaintiffs.

This prayer of the petitioners/plaintiffs was resisted by the respondents on the ground that the they are required to appear as their own witnesses

before the court, before any other witness in the suit is examined, therefore, the applications filed by the petitioners/plaintiffs is hit by Order 18 Rule

3-A CPC and deserves to be dismissed. The trial court after hearing both the parties vide its order dated 17.05.2008 has disallowed the

applications of the petitioners/plaintiffs on the ground that Kh. Saif-ud-Din has appeared as his witness to the case titled Kh. Saif-ud-Din v. Bakshi

Anwar Aftab and Ors. on 07.05.2007 when the suits were not consolidated. The statement of Kh. Saif-ud-Din in other three civil suits is neither

that of the plaintiffs nor of a witness, as such, his statement cannot be placed on other three cases. The court has, however, observed that the

plaintiffs/petitioners are free to make Kh. Saif-ud-Din to appear in the witness box as an attorney of the plaintiffs-petitioners on their behalf. It is

under these circumstances, the present revision petitions have been preferred before this Court.

I have heard learned Counsel for the parties and examined the record. The controversy in all the four suits relates to the Hotel Pamposh along

with the land adjustant to it. It is not in dispute that suits for specific performance along with possession has been filed for the sale of Hotel

Pamposh for an amount of Rs. 62 lac. The plaintiffs/petitioners claimed that they are entitled to Rs. l/4th share in the said property. The deal is

common, and one transaction. Only difference is that the plaintiffs/petitioners claim 1/4th share from the said property.

The suit has been consolidated keeping in view the facts stated herein-above. All the three suits are required to be consolidated with suit titled

Habla Banco v. Bakshi Anwar Aftab and Ors. and now titled as Kh. Saif-ud-Din and others. v. Bakshi Anwar Aftab and Ors. The statement of

Kh. Saif-ud-Din stands already recorded in the main suit. Inherent in the order of consolidation is the fact that one suit is treated as lead suit and all

the evidence recorded in lead suit is required to be followed in other suits. A common judgment has to be passed in the suits, only different decree

sheets are to be prepared in pursuance to the common judgment. The object of consolidation of the suits is to meet the ends of justice to save the

parties from the multiplicity of proceedings, delay and expenses. The parties are relieved of the need of adducing the same on similar documentary

and oral evidence in the two suits at two different trials. In the present case, it is one transaction and same property is involved. There are four

claimants who claim l/4th share in the said property. The consideration amount as alleged by the plaintiffs/petitioners is fixed as Rs. 62 lacs which is

to be shared in equal share by the parties.

Now coming to the question as to whether the statement of the plaintiff Kh. Saif-ud-Din can be placed in other suits. I find that this application

for seeking placement of statement of Kh. Saif-ud-Din on the other suits is unnecessary.

The application filed by the petitioners/plaintiffs in my opinion is not countenance by any provisions of law. The desired effect of proceedings is

that the trial of the main suit will affect outcome of the suit which has been consolidated. I concur with the view of the learned District Judge that

there is no provision for placing the statement of Kh. Saif-ud-Din in other three civil suits. The trial court has rightly stated that Kh. Saif-ud-Din's

statement in other three suits is neither that of the plaintiffs nor of a witness. However, the plaintiffs are free to make Kh. Saif-ud-Din to appear in

the witness box as an attorney of the plaintiffs/petitioners on their behalf if need arises.

Viewed thus, I find no force in these revision petitions which are dismissed along with connected CMP(s), if any. The parties are directed to

appear before the trial court on 14.10.2008.