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Parikshit Raj Mehra v/s Services Press Publications Pvt. Ltd.

    CMM Appeal No. 904 of 2008

    Decided On, 19 September 2008

    At, High Court of Delhi

    By, THE HONOURABLE MR. JUSTICE SHIV NARAYAN DHINGRA

    For the Appearing Parties: N.S. Vasisht, Punit, Rahul Gupta, S.S. Desval, Zubeda Begum, Advocates.



Judgment Text

SHIV NARAYAN DHINGRA, J.


(1) 1. By this petition under Article 227 of the Constitution of India, the petitioner has assailed an order dated 17th July 2008 passed by learned additional District Judge, Delhi whereby he dismissed an application filed by the petitioner under Section 151 CPC.


(2) BRIEF facts relevant for the purpose of deciding this petition are that the two suits, one filed by the petitioner and the other filed by the respondent no. 1 were pending for trial before the Court below. Earlier these suits were pending before this Court and vide an order dated 13th September 1985, this court directed that both the matters be tried together. However, in the year 2003, both the suits were transferred to the Court of learned District Judge Delhi. Since the two suits were of different jurisdiction, the learned District judge vide order dated 16th September 2003 transferred the suit of the petitioner bearing No. 80 of 1980 (new No. 165 of 1986 and 236 of 2004 titled as parikshit Raj Mehra v. Services Press Publications Pvt. Ltd to the Court of civil Judge) and the suit of respondent No. 1 bearing Suit No. 1231 of 1981 (new no. 34 of 2006) was transferred to the Additional District Judge. The suit of the petitioner was dismissed in default on 23rd February 2005. The petitioner then made an application under Order 9 Rule 9 of CPC for restoration of the suit in December 2007. However, the suit of the respondent No. 1, in the meantime, continued and trial proceeded further and has reached at the final stage i. e final arguments have been heard and is reserved for judgment. The petitioner moved an application under Section 151 CPC submitting that his suit pending before the learned ADJ Mr. Atul Kumar Garg be transferred to the Court of Shri v. K. Yadav, learned ADJ where the suit of respondent No. 1 was pending and trial has been concluded and both the suit should be heard and decided together.


(3) LEARNED ADJ, before whom this application was moved, dismissed the application of the petitioner observing inter alia that the applicant was a stranger to the suit of Respondent No. 1. His application under Order 1 Rule 10 for impleadment as a party to the suit was also dismissed by the High Court vide order dated 7th February 1983 when the trial was pending before this Court. Since no other suit was pending before other Court and the suit filed by the petitioner had been dismissed in default and only a misc application under Order 9 Rule 9 CPC was pending, there was no question of two suits to be tried together. The petitioner fraudulently wanted to stay the proceedings of the case of respondent No. 1 till his application under Order 9 rule 9 was decided and the suit was restored. Since no suit was pending in the other Court for trial, he dismissed the application for transferring the suit.


(4) THE petitioner has failed to point out as to what was the jurisdictional error in the order of the trial court and how the trial court has committed irregularity while passing the order. Two suits of the petitioner were never consolidated. This Court had only observed that both the suits be tried together. Consolidation and trying together of two suits is altogether different thing. Where two suits are tried together and if the plaintiff in his suit does not appear, the suit has to be dismissed and the other suit in which the parties appear has to proceed further and brought to a logical end. There is no compulsion that where two suits are to be tried together, the other suit where plaintiff is not appearing, has to be kept alive. The petitioner?s suit was dismissed by the Court in default in 2005. The petitioner had not appeared before that Court and had not kept track of his suit. He moved an application for restoration of the suit only after two years in 2007. He cannot now plead that his suit which lies dismissed should be tried with the suit in which trial has already been completed and is pending only for pronouncement of judgment. The

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judgment in respondent?s suit was reserved after completion of trial and after hearing of final arguments. Once the trial is over and judgment is reserved, no application for clubbing the suit can be entertained, nor the suit can be clubbed with any other pending suit. (5) I, therefore, consider that there is no infirmity in the order of the trial Court. The petition is hereby dismissed being without merits. No orders as to costs.
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