Discretion Of Court To Transfer Or Club Cases Is Not Discretion Of A Mughal Emperor: Karnataka High Court

The Karnataka High Court has set aside an order passed by the trial court dismissing an application filed by a woman to club two pending suits for a common trial and disposal. The suits filed by her and her ex-husband relate to the same property.

Justice Krishna S Dixit allowed the woman's petition and requested the trial judge to allow the subject application of the petitioner for clubbing and try both the suits together.

Observing that obviously the two suits will have their own issues but same is no ground for denying the request for clubbing, the court said:

"It is also true that in matter of transfer and clubbing of cases, a greater discretion lies with the Court in which they are pending. However, it is not a discretion of a Mughal Emperor. Lord Halsbury, more than century ago in SHARP vs. WAKEFIELD, 1891 AC 173, said that discretion means according to rules of reason and justice. Such an approach, at the hands of the Court below is not reflected. What prejudice would be caused to the Respondent should these suits be clubbed for the purpose of trial, is not forthcoming despite the vociferous submission of the learned counsel appearing for the Respondent."

The petitioner had contended that when the matter essentially relates to the same property and the lis is between the ex-spouses, the grant of the subject application was eminently warranted.

The former husband opposed the plea and submitted that his suit is for partition, whereas petitioner's injunctive suit is of recent times. The issues to be decided in the former are different from those in the latter, he said.

The court noted that parties are ex-spouses as their marriage has been dissolved by the Family Court but challenge to the Dissolution Decree is still pending.

“Pendency is irrelevant inasmuch as even if their spousal status is restored by reversing the decree of dissolution of marriage, every spouse is an independent person qua the other,” it added.

Observing that the subject property in both the suits is the same and pleadings are complete and issues have been framed, the court noted the trial has begun in the partition suit, whereas it is yet to begin in the injunctive suit.

“When parties are the same, property involved is same and Court in which the suits are brought is the same, ordinarily, the request for clubbing should not be denied, subject to all just exceptions, into which the argued case of the Respondent does not fit,” it added

The court said there is no repugnancy between the issues framed in the partition suit and those in the injunctive suit and therefore, clubbing would save time, energy, and vyavadhaana of all the stakeholders.

Case Title: Reeth Abraham And Sunil Abraham

Case No: WRIT PETITION NO. 24842 OF 2022

Citation: 2023 LiveLaw (Kar) 191

Date of Order: 24-05-2023

Appearance: Senior Advocate Suresh S Lokre a/w Advocate Shravan S Lokre for petitioner.

Advocate S K Prathima for Respondent.

Click Here To Read/Download Order