Common evidence cannot be recorded in the case where the parties, the cause of action and the reliefs claimed in both the suits are distinctly different: Bombay High Court

The decision that for the suits where the parties to the suit, the cause of action in both the suits and the reliefs claimed in both the suits are distinctly different, common evidence cannot be recorded is upheld by the High Court of Bombay through the learned bench led by HONOURABLE MR. JUSTICE MILIND N. JADHAV in the case of Mr. Nitin Sitaram Waghmare And Anr. Versus Balu Kanha Gawade And Ors. (WRIT PETITION NO. 4358 OF 2022).

FACTS OF THE CASE- Brief facts of the case are that Respondent Nos.1 and 2 as plaintiffs filed RCS No.537 of 2012 against Petitioner No.1 and his father before the Civil Judge, Senior Division, Kalyan for injunction in respect of suit property bearing Survey No.44 Hissa No.(2b) ad-measuring 85 gunthas located at Taluka Kalyan, District Thane on 05.03.2012. Petitioner Nos. 1 and 2 along with their sister Smt. Neeta Raman Shinde (Respondent No.4 herein) filed RCS No.149 of 2015 against Drupadi Waman Bhoir, Shivaji Waman Bhoir, Netaji Waman Bhoir, Umaji Waman Bhoir, Aasha Anil Patil, and Tanaji Waman Bhoir (Respondent No.3 herein) for a declaration to obtain sale permission in respect of Survey No.44 (2b) ad-measuring 85 gunthas (same property as in Suit No.537 of 2012) and execution of the sale deed in the name of the Plaintiffs. Here the plaintiffs have also claimed that the Defendants, namely six family members who are legal heirs of Waman Kamalu Bhoir, had managed to sell a portion of the suit property, later numbered as Survey No.44(2b), to Shri. B.K. Gawade and P.H. Teli for an amount of Rs.160,000.00, and have challenged the sale deed dated 15.05.2008. In RCS No.537 of 2012, the defendants made an application with the Thane District Judge, under Section 24 of the Code of Civil Procedure, 1908 (CPC) to join the aforementioned two suit procedures and to lead joint evidence under Section 114 read with Order 47 of the CPC. The trial court denied the same and hence, this petition was filed.

The counsel for the Petitioners, Mr. Chandrakant Joshi, has underlined that the suit property in both actions is intertwined, even though the parties are distinct, and that the Respondents are involved in fraud, thus both suits should be tried jointly to avoid duplication of proceedings. He argued that while the cause of action and misjoinder of parties are unimportant, the common matter of law must be considered while deciding both actions.

The court observed that the Petitioners have recognised in the petition that the parties to both claims are not same, save for the description of the suit property, and that the reliefs sought in both suits are distinctly different. It is important to note that the Petitioners herein (as Defendants in RCS No.537 of 2012) have filed a counterclaim for injunction in the abovementioned matter. RCS No.537 of 2012 is an injunction-only action, whereas RCS No.149 of 2015 is an action for particular performance, declaration, and execution of a sale deed.

JUDGEMENT- After considering all the facts and listening to both the sides, the court held that in the aforementioned two suits, common evidence cannot be recorded. The court held learned Trial court’s findings in both its orders of 29.08.2019 and 09.03.2021 to be accurate and stated that it does not require any intervention. The court said that in the present case, there has never been a case of miscarriage of justice. Thus, it directed the learned Trial Court to make and attempt to resolve both the suits as quickly as practicable.


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