Jyotirmay Bhattacharya, J.@mdashThere are two suits between the parties. First of such suits being Title Suit No. 125 of 2005 was filed by the petitioner herein against the opposite parties of C.O. No. 1572 of 2010. In the said suit, a declaration was sought for declaring the plaintiff as a bona fide tenant in respect of the suit property and for a further declaration that the plaintiff is entitled to enjoy the suit property uninterruptedly, peacefully and continuously until it is evicted through process of law and the defendants have no authority to cause disturbance to the business of the plaintiff and its partners therein. A decree for permanent injunction was also sought for restraining the defendants jointly or severally and each of them and/or their men and/or agents and/or associates from disturbing and/or interfering and/or invading the peaceful possession enjoyment and occupation of the plaintiff in the suit property or any portion thereof. Such relief was claimed in respect of the suit property which comprises of (i) 3122 sq. ft. of built up area on the basement of the building; (ii) 176 sq. ft. of built up area on the ground floor of the said building; (iii) 673 sq. ft. of built up area in the first floor of the said building being premises No. 32, Block DD, Sector-I of Northern Salt Lake City, Police Station Bidhannagar (North), Kolkata 700 064.
2. The defendants therein who are the opposite parties in C.O. No. 1572 of 2010 are contesting the said suit by filing their respective written statement therein. The defendant Nos. 1 and 2 filed a joint written statement in the said suit denying the allegations made out in the plaint. The defendant Nos. 3 and 4 filed their joint written statement for contesting the said suit. The defendant No. 5 is also contesting the said suit by filing his written statement therein. Though the said suit was filed in 2005 but still then the said suit has not yet matured for hearing though the pleadings therein are all complete.
3. Subsequent suit being Title Suit No. 140 of 2008 was filed by the opposite party No. 1 in C.O. No. 1572 of 2010 against the petitioner of the said revisional application. The said suit was filed for recovery of vacant and khas possession of the suit property by evicting the defendant therefrom and for permanent injunction for restraining the defendant its men, agents and employees from parting with possession of the suit premises in any manner and also for mesne profit. The suit property in the said suit comprises of an area of 3122 sq. ft. of built up area in the basement and 176 sq. ft. of built up area in the ground floor of the said building.
4. The defendant of the said suit who is the petitioner in C.O. No. 1572 of 2010 is contesting the said suit by filing written statement therein. The case which was made out by the defendant in its said written statement is practically the replica of its plaint filed in its declaratory suit being Title Suit No. 125 of 2005. It is also true that the case which was made out by the opposite party No. 1 and 2 in their written statement filed in Title Suit No. 125 of 2005 is also the replica of the case which was made out by the opposite party No. 1 in its paint filed in Title Suit No. 140 of 2008. But fact remains that the parties in both the suits are not exactly identical as the opposite party Nos. 2 to 5 of C.O. No. 1572 of 2010 are not parties in the eviction suit being Suit No. 140 of 2008 though they are parties in the declaratory suit i.e. Title Suit No. 125 of 2005. Again the suit property in both the aforesaid suits are not identical as the subject matter of the suit in Title Suit No. 125 of 2005 comprises of different areas in three different floors i.e. in the basement, ground floor and the first floor while the subject matter of the eviction suit being Title Suit No. 140 of 2008 only comprises of the specific portion of the built up area in the basement as well as in the ground floor of the said building.
5. On perusal of the pleadings of the respective parties, this Court finds that though a common issue is involved between the parties in both the suits but all the issues in the aforesaid suits are not exactly identical and the parties in both the suits are not same. Again the suit properties in both the suits are also not similar.
6. Under such circumstances, the learned Trial Judge rejected the petitioner''s prayer for consolidation of the said suits not only by taking note of the aforesaid dissimilarities between the said two suits but also by taking note of the fact that the eviction suit filed by the opposite party No. 1 in C.O. No. 1572 of 2010 is in an advanced stage of hearing whereas the declaratory suit has not yet matured for hearing. The propriety of the said order being order No. 27 dated 5th April, 2007 is under challenge in the aforesaid two applications under Article 227 of the Constitution of India, at the instance of the plaintiff of the eviction suit who is also the defendant No. 1 in the declaratory suit.
7. Let me now consider as to how far the learned Trial Judge was justified in passing the impugned order in the facts of the instant case.
8. Mr. Ray Chowdhury, learned Senior Counsel, appearing for the petitioner in both these revisional applications, submitted that since the primary issue in both the aforesaid suits is common and the real contesting parties in both the suits are same and further since both the suits are to be decided on the basis of common set of evidence of the parties, it would be better if both the suits are heard simultaneously i.e. one after another, even though consolidation of both the suits is not possible. Mr. Ray Chowdhury further submitted that even the possibility of conflict of decision on the common issues in both the suits can be ruled out, if both the suits are heard simultaneously one after another by a common judge. Under such circumstances, Mr. Ray Chowdhury invites this Court to interfere with the impugned order.
9. Mr. Chatterjee, learned Advocate, appearing for the opposite party Nos. 1 and 2 submitted that consolidation of the said suites is not at all possible in the instant case as not only the parties in both the suits are different but also the suit properties in both the suits are not identical and further the issues in both the suits are also not exactly identical.
10. Mr. Chatterjee further submits that the eviction suit which was filed by his client has matured for hearing and the same is in the stage of peremptory hearing and as such, the hearing of the eviction suit cannot be tagged with the hearing of the declaratory suit. Mr. Chatterjee expressed his anxiety as according to him, if the hearing of the declaratory suit is stayed for any reason whatsoever, the hearing of the eviction suit will automatically be stalled, in case the aforesaid two suits are consolidated. Under such circumstance Mr. Chatterjee vehemently opposed the petitioner''s prayer either for consolidation of the said suits or for hearing of the aforesaid suits simultaneously one after another, as suggested by Mr. Ray Chowdhury.
11. After hearing the learned Counsel of the parties and after taking note of the respective pleadings of the parties carefully, this Court cannot rule out the cause of anxiety of Mr. Chatterjee as in case the declaratory suit is stayed for any reason whatsoever relating to an uncommon issue involved in the declaratory suit, the eviction suit will also be stalled even though the fate of such uncommon issue is not the determining factor in the eviction suit. As such this Court holds that the consolidation of these two suits is an impractical solution. Parties in both the suits are different and the subject matter of the dispute in both the suites are not exactly identical and all the parties are participating in the trial of the suit with their respective contentions to establish their respective rights therein.
12. This Court however finds that some issues are common between the common parties in both the suits; say for example, the nature of occupation of the petitioner in the basement and the ground floor of the suit property and the nature of its relationship with the opposite party No. 1 in C.O. No. 1572 of 2010 are the common issues between the common parties in both the suits. Both the petitioner and the opposite party No. 1 in C.O. No. 1572 of 2010 are required to lead common evidence in both the suits. In fact, the common set of documents are relied upon by both the parties to establish their respective claims in both the suits. As such convenient trial of both the suits, so far as the common issues are concerned, in my view, demands consolidation of the aforesaid suits so that the conflict of decision on the common issue between the same parties can be ruled out but such consolidation is not profitable in the instant case for the aforesaid dissimilarities in these two suits as mentioned above.
13. Under such circumstances this Court holds that the justice will be sub-served if both the suits are tried simultaneously one after another as simultaneous hearing of the said suits will not only enure to the benefits of the parties so far as leading of common evidence by them is concerned on common issues in both the suits but also for convenient disposal of common issues in both the suits by the Court and also for avoiding conflict of decision on such common issue. As such this Court directs the learned Trial Judge to hear out and/or dispose of both the aforesaid suits simultaneously one after another with this rider that the hearing and/or disposal of eviction suit should not be delayed and/or deferred on any reason whatsoever for the delay and/or on disposal of the declaratory suit. Thus it is made clear that if the petitioner herein seeks any adjournment in his suit or if the proceeding in the declaratory suit is stayed for any reason whatsoever relating to any issue which is not common to both the suits, the proceeding of the eviction suit will not be stayed and the same may also be disposed of notwithstanding stay of the declaratory suit.
14. Both the revisional applications are thus disposed of with the above observation. The impugned orders are thus modified accordingly. The learned Trial Judge is thus directed to dispose of both the suits by following the above guidelines.
15. Urgent xerox certified copy of this order, if applied for, be given to the parties as expeditiously as possible.
