MINOR BHOPO FAKIRBHAI Vs. MANI
HIGH COURT OF GUJARAT
MINOR BHOPO FAKIRBHAI
MANI D/O JIJIBHAI
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(1.)This is a civil revision application by the original defendants Nos. 1 and 2 in Suit No. 90 of 1959 challenging the order of the 5th Joint Civil Judge Senior Division ordering that this suit should be consolidated with suit No. 11 of 1959 notwithstanding their objections and the objections of defts. Nos. 4 to 7 and ordering that the evidence of both the suits be recorded in the former suit. It is contended by the applicants that two of the parties to one of the suits are not parties to the second suit.
(2.)The learned counsel for the opponents raises a preliminary objection and contends that this application does not lie as it does not fall within the ambit of sec. 115 of the Code of Civil Procedure because no case has been decided by a subordinate Court. He relies on a Full Bench decision of the Allahabad High Court in Gupta & Co. v. Kripa Ram Bros A. I. R. 1934 Allahabad 620 and contends that although the word case does not necessarily mean a suit and may include interlocutory orders in the instant case no case has been decided by the lower Court. The learned Judges of the Allahabad High Court have observed as under :
The word case is not an exact equivalent of the word Suit. It is something wider. At the same time it does not include every order that is passed by a Court during the trial of a suit or proceeding pending before it. It cannot be a case unless it is a proceeding which can be regarded as something separate and in a sense independent from the suit under hearing and the termination of that proceeding should be somewhat different from mere orders passed in the ordinary trial of the suit itself. Where the case is a proceeding which can be considered separate and distinct and is finally disposed of by an order which terminates it may well be considered to be a case decided although the suit has not in one sense been completely disposed of.
(3.)This view has been relied on by the learned counsel for the opponents. The question is whether a proceeding relating to consolidation of suits is an independent proceeding or is part of the proceeding of the two suits consolidated. In my opinion the application to consolidate the two suits is a separate and independent proceeding. If only one suit is filed such an application cannot be given. Such an application has nothing to do with the matters to be decided in either of the suits. It is not of the nature of an interlocutory application in either suit. I therefore reject the preliminary objection and hold that revision does lie under sec. 115 Civil Procedure Code in respect of the order to consolidate two suits for the purpose of hearing evidence.
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