Hon'ble WAS, J. - (1.) INSTANT writ petition has been filed under Article 226 and 227 of the Constitution of India for quashing order dated 23.2.2010 passed by the District Judge, Banswara in Civil Misc. Case No. 3/2008 whereby learned trial Judge allowed application filed under Section 24 CODE OF CIVIL PROCEDURE, 1908 by the respondents and passed order for transferring Civil Original Suit No. 4/2007 and 7/2007 pending in the Court of Civil Judge (Senior Division), Banswara, to the Court of Addl. District Judge, Banswara.
(2.) AS per facts of the case plaintiff-petitioners filed Suit No.4/2007 and 7/2007 in the Court of Civil Judge (Sr. Division), Banswara on 13.2.2007 for permanent injunction and restraining the defendants from interfering in their possession. AS per the petitioners, the said case is fixed for recording plaintiffs' evidence. Another suit was filed by the respondents for possession and injunction and said suit was registered as Suit No. 26/2007 which is pending in the Court of Addl. District Judge, Banswara. For challenging the order impugned dated 23.2.2010 passed upon application filed under Section 24, CODE OF CIVIL PROCEDURE, 1908 by the defendants, it is submitted by learned counsel appearing on behalf of plaintiff petitioners that Suit No. 4/2007 and 7/2007 were filed by the plaintiff-petitioners in the Court of Civil Judge (Sr. Div.), Banswara. For consolidating both the cases, an application was filed by the respondent Ravindra Nath under Section 151 CODE OF CIVIL PROCEDURE, 1908 on the ground that subject-matter of both the suits is identical, in which, similar issues will be framed and similar evidence will be recorded, therefore, in the interest of justice, both the suits may be heard together to avoid contrary judgments. The said application filed by respondent under Section 151, CODE OF CIVIL PROCEDURE, 1908 was rejected vide order dated 19.5.2008. Said order which is made by the trial Court was challenged before this Court by way of filing writ petition being S.B. Civil Writ Petition No. 4576/2008 but co-ordinate Bench of this Court dismissed the said writ petition on 4.9.2008 vide Annex.4. Another application was filed by the petitioners under Section 10, C.P.C, in the civil suit filed by respondent Ravindra Nath and others for staying the proceedings of that suit till decision of the suit filed by the petitioners being Suit No. 4/2007 which was pending in the Court of Civil Judge (Sr. Div.), Banswara. Said application was filed on the ground that property in question is the same and parties are also the same, therefore, the proceedings in civil suit may be stayed till decision of suit No. 4/2007. Learned Addl. Sessions Judge, Banswara rejected the application filed by the plaintiff under Section 10, CODE OF CIVIL PROCEDURE, 1908 vide order dated 18.12.2009. While inviting attention towards both the above orders passed by the Civil Judge (Sr. Div.), Banswara and upon application for consolidating the suits and for staying the proceedings till disposal of the suit, it is submitted by learned counsel for the plaintiff-petitioners that by both the orders it is categorically observed by both the Courts that subject-matter is not same; but, the learned District Judge, Banswara while accepting the application filed under Section 24, CODE OF CIVIL PROCEDURE, 1908 has passed order to transfer civil suits No. 4/2007 and 7/2007, pending in the Court of Civil Judge (Sr. Div.), Banswara, to the Court of Addl. District Judge (Fast Track), Banswara is totally in contravention of orders passed by both the Courts and upheld by this Court. Learned counsel for the petitioner submits that the prayer in the suit pending in the Court of Civil Judge (Sr. Div.), Banswara and prayer of the suit pending in the Court of Addl. District Judge, Banswara are altogether different, therefore, the order passed by the District Judge under Section 24, C.P.C, is totally erroneous because both the Courts below found that controversies are different in between the parties, therefore, the order impugned order dated 23.2.2010 may be quashed and set aside.
(3.) LEARNED counsel for the petitioners also submitted that due to passing the impugned order under Section 24, CODE OF CIVIL PROCEDURE, 1908 the right to appeal has been curtained by the District Judge, so also, the Civil Judge (Sr. Div.) is having jurisdiction to adjudicate the prayer of the petitioners made in the suit but vide the impugned order learned District Judge has illegally transferred those suits to the Court of Addl. District Judge (Fast Track), Banswara, which is illegal. Per contra, learned Senior Advocate Mr. M.R. Singhvi, appearing on behalf of the respondents, at the first instance, submitted that any order passed by the Civil Judge (Senior Division), Banswara and Addl. District Judge (Fast Track), Banswara upon applications filed under Section 151, CODE OF CIVIL PROCEDURE, 1908 and under Section 10, CODE OF CIVIL PROCEDURE, 1908 do not curtail the powers of the District Judge under Section 24, CODE OF CIVIL PROCEDURE, 1908 for transferring any particular case for adjudication. The only embargo is that order of the District Judge must be in consonance with Section 24 of the Code of Civil Procedure. Learned counsel for the respondents submits that admittedly an application under Section 10, CODE OF CIVIL PROCEDURE, 1908 was filed by one of the petitioners in the Court of Addl. District Judge for staying the proceedings of the suit filed by the defendant on the ground that subject-matter in the said suit is similar to the case pending in the Court of Civil Judge (Sr.Div.), which is Civil Suit No. 4/2007; meaning thereby, one of the petitioners accepted the fact that subject matter of the suit is he same. While inviting my attention towards the impugned order passed by the District Judge, it is submitted that there is no direction in the order for consolidating all the three cases but order is to transfer the Civil Suits No. 4/2007 and 7/2007 to the Court of Addl. District Judge, Banswara for hearing because the land in question which is admittedly situated in Araji No. 328/14/1 and No. 356/41/2 is in question. Further, while inviting attention towards pleadings of the suit filed before the Civil Judge (Sr.Div.) by the plaintiff-petitioners, it is submitted that in suit No. 4/2007 the plaintiff-petitioners Purushottam Lal and Shakuntala are claiming right upon the land situated in Araji No. 328/14/1 and in civil suit No. 7/2007 filed by four plaintiffs Piyush, Bharat, Jalaj and Manoj Kumar, they are claiming their right on the ground of adverse possession of plots No. 25, 26, 27, 28, 29, 30 and 31 and the said plots are situated in Arazi Khasra No. 356/41/2 which is evident from the reply filed by the defendant in the suit. Therefore, it cannot be said that learned District Judge has wrongly exercised his powers under Section 24, CODE OF CIVIL PROCEDURE, 1908 ;