C.L. Pangarkar, J.@mdashRule, returnable forthwith. Heard finally with consent of the parties.
2. The challenge in this writ petition is to the order dated 22.10.2007 passed by the Civil Judge on an application under Order XIII, Rule 10 of C.P.C. filed by the plaintiff.
3. A few facts can be stated thus: The plaintiff has instituted a Special Civil Suit No. 21/2000 against the respondent/defendant for recovery of a sum of Rs. 2,97,58,668. Not only the plaintiff has instituted this suit, but has instituted other civil suits bearing Civil Suit Nos. 7, 8 and 14 of 2000. These suits are also for recovery of money. In these civil suits, the defendants have also filed counterclaims. Similarly, the defendant/respondent has also instituted a suit against the plaintiff being civil suit No. 1 of 2003 for recovery of a sum of Rs. 53,09,711.67. It is the contention of the plaintiff/petitioner that the transaction in all the suits are connected with each other. On 19.01.2005, in civil suit No. 1/2003, the present defendant/respondent filed an application for calling the proceedings in civil suit Nos. 7, 8, 14 and 21 of2000. The Court had allowed that application. The respondent herein had filed a writ petition in the High Court challenging the order passed by the Civil Judge staying the civil suit No. 1 of 2003 filed by the defendant. While deciding the writ petition, the Court set aside the order of staying the civil suit filed by the respondent/defendant against the plaintiff and granted liberty to the parties to apply for consolidation of all the suits. The defendant/respondent accordingly moved an application for consolidation of suit, but in the meanwhile, the present plaintiff had moved an appeal before the Supreme Court challenging the judgment of the High Court in Writ Petition No. 301/2004. The said appeal came to be disposed of and the Supreme Court gave directions with regard to the disposal of all suits one after the other. The contentions in all the suits and the parties are common. Witnesses are also common and all transactions are related to each other and hence, the record in other suit is relevant in civil suit. The plaintiff, therefore, contends that while deciding suit No. 21/2000, the Court should call for record in civil suit No. 1/2003.
4. This application was opposed by the defendants. The trial Court after hearing the parties, rejected the application for calling the record and being aggrieved by that, this writ petition is preferred.
5. I have heard the learned Counsel for the petitioner and the respondents.
6. The four special civil suit bearing Nos. 7, 8, 14 and 21 of 2000, have been filed by the present petitioner against the respondent/defendant while special civil suit No. 1/2003was instituted by the respondent/defendant against the plaintiff. In the writ petition No. 301/2004, this Court had granted liberty to the respondent/defendant to apply for consolidation of all suits, but the plaintiff herein, felt aggrieved by the same and filed appeal before the Supreme Court. The matter seems to have been set at rest by the Supreme Court as to how and in what manner the suits should be disposed of. The Supreme Court has given following directions.
After hearing the counsel for the parties, we dispose of the appeal in the following terms:
i) The trial Court in Suit Nos. 7, 8, 14 and 21 of 2000 and counter-claims therein shall proceed forth with to complete the evidence of the parties within four months from today. The final argument shall, however, be deferred initially for three months.
ii) Soon after the completion of evidence in Suit Nos. 7, 8, 14 and 21 of 2000 and the counterclaims filed by the VGQ the trial in Suit No. 1 of 2003 be taken up. The Court as well as the parties are requested to complete their evidence in Suit No. 1 of 2003 within four months. VGQ should complete its evidence within two months and BBPl and VMCPL should also complete their evidence within two months thereafter.
iii) Soon after the completion of evidence of the parties in the two sets of suits the trial Court shall take up the two sets of suits for final hearing. It is left open to the trial Court to either hear the arguments in Suit No. 1 of 2003 along with Suit Nos. 7, 8, 14 and 21 of 2000 and the counter-claim filed by VGQ or hear the arguments in Suit No. 1 of 2003 after the completion of the arguments in Suit Nos. 7, 8, 14 and 21 of 2000 and the counter claims.
The trial Court is requested to dispose of the two sets of suits within a period of one year.
7. Thus, the Supreme Court clearly directed the Trial Court to initially complete recording of evidence in all four suits filed by the present plaintiff and defer the hearing of arguments in them for four months and in the mean while, to try civil suit No. 1/2003 and complete the recording of evidence within two months in that suit. It was left open to the trial Court to hear the arguments in all the civil suits together or to hear the arguments in civil suit No. 1/2003 after the arguments in other suits are heard. Obviously, the suits were not consolidated nor were they directed to be decided by common judgment. On the other hand, one set of suit filed by the plaintiff was to be heard together while the other suit of defendant was to be heard separately. From the contents in para. 14 of the application, it is apparent that in civil suit No. 1/2003, the evidence was closed and the arguments in civil suits No. 7, 8, 14 have been concluded while the arguments in civil suit No. 21/2000 were in progress. This application was filed in civil suit No. 21/2000 when the arguments in that civil suit were being heard. This appears to be the position on the date this application under Order XIII, Rule 10 of C.P.C. was filed, i.e. on27.09.2007.
8. The grounds on which the petitioner seeks to call for the record of civil suit No. 1/1003 can be summarised as follows:
i) That the suits have been filed by both the parties against each other on the basis of the account i.e. mutual, current and open account.
ii) All transactions are, therefore, interconnected.
iii)The parties in all suits, are common.
iv) The witnesses are same and
v) The record in a civil suit, can be conveniently looked into.
9. The main thrust of the argument of the learned Counsel for the petitioner was that both the parties have filed suits against each other and the case is of mutual, current and open account. He submits that therefore, the Court in fact would be required to look into the pleadings and the evidence in other suit and then alone it would be able to arrive at a right conclusion. He also submits that the witnesses are even common. There is no doubt that the parties have instituted suits against each other and the case is of mutual, current and open account. There is also no doubt that all the transactions in civil suits, would be interconnected. Further, there could be no dispute that the witnesses examined in the civil suits, are common. The material question, however, is whether the record could be called and what purpose it would serve. To my mind, the calling of record, would not serve any purpose for the simple reason that in different suits, separate evidence has been recorded and separate documents have been filed. If the evidence has been recorded separately and separate documents have been filed, then, each suit is to be decided on the basis of the evidence and the documents available in that suit. No document or evidence in other suit, can be read or looked into for decision in one suit. Every suit has to be decided on the basis of the evidence available in the suit alone. Thus, even if the record in civil suit No. 1/2003 is called, that will not help the cause of the plaintiff.
10. It was contended that the plaintiff wants to refer to the evidence of one witness in civil suit No. 1/2003. It is submitted that if that evidence in civil suit No. 1/2003 is looked into, that will help the Court to arrive at a right conclusion in plaintiffs'' suit. The submission cannot be accepted. If the evidence of any witness, is recorded, the plaintiff can have certified copy of the deposition of that witness and can produce it. Where a certified copy can be filed, the record need not be called. The certified copy of the deposition can be used as contemplated by Sections 80, 145 and 157 of the Evidence Act. If the plaintiff so desires to bring certain deposition or evidence of any witness to the notice of the Court, the above referred sections can be availed of by the plaintiff. The Supreme Court in
The High Court in its judgment has made a reference to a �a series of attempts to deprive the landlords of their lawful rights� by tenants. The High Court appears to have taken into consideration some other documents referable to some other litigation between the parties which documents, in our opinion, could not have been taken into consideration unless tendered in evidence and brought on record consistently with procedural law governing trial of civil cases.
11. It is thus clear that the record and proceedings in another suit, cannot be read in evidence unless documents concerned are tendered in evidence consistent with the procedure governing the trial. I, therefore, find that the record and proceedings could not be called although the reasons given by the trial Judge, are not convincing, but the application was rightly rejected by him. There is, therefore, no substance in the writ petition. It is dismissed.
