Allowed

Bhawandas Sharma v. Indian Overseas Bank

Karnataka HC3 Sept 2021CRP/49/2021

Case brief

AI extract

What is this about?

The High Court allowed a Civil Revision Petition under Section 115 of CPC against a lower court order refusing to transfer a partition suit. The Court held that transfer orders involve jurisdictional questions and approved the transfer for a common trial of related suits to prevent contradictory evidence.

What did the court decide?

Order dated 05.01.2021 modified; O.S No.5735/2008 transferred to CCH-69 for common trial.

Bhawandas Sharma Vs Indian Overseas Bank — Partition | Karnataka HC (2021)

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CRP No.49/2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 3^RD DAY OF SEPTEMBER, 2021

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BEFORE

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THE HON’BLE MR. JUSTICE SURAJ GOVINDARAJ

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CIVIL REVISION PETITION NO.49 OF 2021 (IO)

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BETWEEN:

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BHAWANDAS SHARMA S/O. LATE G.D. SHARMA, AGED ABOUT 50 YEARS, R/AT FLAT NO. C-4, III FLOOR, RUSTHUMJI APARTMENT, NO.30, NORRIS ROAD, RICHMOND TOWN, BENGALURU - 560 025. ... PETITIONER

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(BY SRI.P.D. SURANA, ADVOCATE)

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AND:

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INDIAN OVERSEAS BANK HAVING CENTRAL OFFICE AT NO.763, ANNA SALAI, CHENNAI - 600 002 REPRESENTED BY ITS CHAIRMAN

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INDIAN OVERSEAS BANK REP. BY ITS MANAGER REGIONAL OFFICE, NO. 10/1-4, LAKSHMINARAYANA COMPLEX, 3RD FLOOR, PALACE ROAD, BENGALURU - 560 025 REPRESENTED BY ITS REGIONAL MANAGER

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SMT KRISHNAVATHI SHARMA W/O LATE G D SHARAMA AGED ABOUT 73 YEARS R/A NO. 50, NO.673/1, CENTURYPARK LAYOUT,

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VASANTH MAHAL ROAD, MYSURU - 570 010 REP. BY HER G.P.A. HOLDERS RESPONDENTS 4 AND 7

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SRI.KRISHNA KUMAR SHARMA S/O. LATE G.D. SHARMA AGED ABOUT 52 YEARS R/A NO.50, NO.673/1, CENTURYPARK LAYOUT, VASANTH MAHAL ROAD, MYSURU - 570 010

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SMT. PREMAVATHY W/O LATE G.D. SHARMA AGED ABOUT 68 YEARS R/AT NO.21/2(NEW NO.82), SPENCER ROAD, II CROSS, FRAZER TOWN, BENGALURU - 560 005. SINCE DEAD REP. BY HER LR's PETITIONER AND RESPONDENTS 3, 4 AND 7

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SRI. UMESH KUMAR SHARMA @ OMPRAKASH SHARMA S/O LATE G.D. SHARMA AGED ABOUT 48 YEARS R/AT NO. 10/1, 6TH FLOOR, LAXMINARAYAN COMPLEX, PALACE ROAD, VASANTHNAGAR BENGALURU - 560 052 SINCE DEAD REP. BY HIS LR's RESPONDENT NO. 3

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SRI. KAMALKUMAR SHARMA S/O LATE G.D. SHARMA AGED ABOUT 47 YEARS R/AT NO. 107-G, 1ST FLOOR, C.M.R's S.M.R. VINAY SERENE NO.71/24, ROBERTSON ROAD CROSS, FRAZER TOWN, BENGALURU - 560 005. 8. M/S. LARSEN AND TURBO NO. 10/1-2, 1ST FLOOR, LAKSHMINARAYANA COMPLEX,

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PALACE ROAD, VASANTHNAGAR, BENGALURU - 560 052. REPRESENTED BY ITS BRANCH MANAGER

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M/S. DEVLOK TOURIST COTTAGE PVT. LTD. NEAR S.B.M. WEIGH BRIDGE, BENGALURU- MYSURU ROAD, MYSURU - 560 026. REP. BY ITS MANAGING DIRECTOR SRI. KRISHNA KUMAR SHARMA S/O. LATE G.D. SHARMA

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SRI.KRISHNAPPA. P S/O. SRI. PEDDANNA VENKATASWAMY AGED ABOUT 69 YEARS, C/O. ADARSHA EDUCATIONAL COMPLEX SITE NO.3, 12TH CROSS, 1ST BLOCK, R.T. NAGAR, BENGALURU - 560 032.

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SRI. K. ASHOK KUMAR RAI S/O LATE SANJEEVA RAI AGED ABOUT 46 YEARS, R/A NO. 13/10, NEW SAYAJI RAO ROAD, BAMBOO BAZAAR, MYSURU - 570 020.

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M/S. COLOMBIA ASIA HOSPITAL PVT. LTD., NO. 2021, 3RD FLOOR, SALAPURIA PALLADIUM 100 FT. ROAD, HAL II STAGE, BENGALURU- 560 038. REPRESENTED BY ITS MANAGING DIRECTOR

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... RESPONDENTS

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(BY SRI.DEEPAK, ADVOCATE FOR R1 & R2; SMT.JYOTHI BHAT, ADVOCATE FOR R3, 4, 7 & 11; SMT.TEJASWINI, ADVOCATE FOR R8; R9 DOES NOT EXIST; R5 & R6 ARE EXPIRED; SRI. SHRAVANTH ARYA TANDRA FOR SRI. SAJAN POOVAYYA, ADVOCATE FOR R12)

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THIS CRP IS FILED UNDER SECTION 115 OF CPC AGAINST THE ORDER DATED 05.02.2021 PASSED IN MISC.NO.438/2019 ON

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THE FILE OF THE PRINCIPAL CITY CIVIL AND SESSIONS JUDGE AT BENGALURU, PARTLY ALLOWING THE PETITION FILED UNDER SECTION 24 OF CPC.

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THIS CRP COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The petitioner is before this Court seeking to set aside the order dated 05.01.2021 in Misc. Petition No.438/2019 passed by the Principal City Civil and Sessions Judge, Bengaluru, reverse the same and allow the miscellaneous petition for transfer filed by the petitioner in its entirety.

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Misc. Petition No.438/2019 has been filed seeking for transfer of suits in O.S No.5735/2008 pending on the file of CCH-45, O.S No.254/2009 pending on the file of CCH-69 (now CCH-84), O.S. No.7187/2018 pending on the file of CCH-41, O.S No.4344/2012 pending on the file of CCH-36, O.S No.633/2018 pending on the file of CCH-38.

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O.S No.5735/2008 has been filed seeking for partition of the properties between the plaintiff and

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defendants, one of the properties being property No.10/1, 1^st Floor, Lakshminarayan Complex, Vasanthnagar, Bengaluru. In the said suit, averments are made as regards the dissolution of the partnership deed stated to have been entered into, and in view of the dissolution thereof, certain gift deed executed as regards properties subject matter of the suit for partition. In the said partition suit, petitioner, respondents 5 and 6 are the plaintiffs. Respondents No.3, 4, 8, 9 and 10 are the defendants.

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The suit in O.S. No.254/2009 has been filed by respondent No.3 herein against Indian Overseas Bank, who are respondents No.1 and 2 herein for eviction. In the said suit, the petitioner impleaded himself as Defendant No.3 therein.

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In O.S No.254/2009 respondents No.1 and 2 have taken up a contention that there was dissolution of partnership and thereafter certain lease deed has

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been executed with the petitioner herein and as such, claim of the Respondent No. 3 of ownership of the property in O.S No.254/2009 as landlord has been denied.

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The suit in O.S No.633/2018 has been filed by the petitioner against respondent No.1-Indian Overseas Bank for eviction, claiming ownership of the property in pursuance of the dissolution and, as such, having stepped into the shoes of the landlord.

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The suit in O.S No.7187/2018 has been filed seeking for declaration that the gift deed dated 22.07.2018 and 25.05.2018 are null and void. In the plaint it is alleged that subsequent to the execution of the dissolution of the partnership on 01.05.1985, the properties were allotted to the various members of the family and as such, in pursuance of the said allotment various persons became owners and gift deed could not be executed.

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The suit in O.S. No.4344/2012 has been filed for declaration that gift deed dated 14.10.2009 is not binding on the plaintiff. Further, in this suit a reference was made with regard to partnership and dissolution thereof and that the plaintiff was the owner of the property and gift deed executed amongst defendants is a fraudulent document.

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It is in the above background, aforesaid Misc.P. No.438/2019 has been filed to club all these suits together and try the same and pass a common judgment.

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The trial Court transferred the suits in O.S No.254/2009, O.S No.633/2018, O.S No.7187/2018 and O.S No.4344/2012 to CCH-69. However, rejected the plea for transfer of O.S No.5735/2008 on the ground that no prejudice would be caused to any of the parties, if partition suit in O.S. No.5735/2008 is independently tried. While doing so, at paragraph 11 of the order, the trial Court

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observed that the issues in a partition suit and ejection cannot be the same.

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Aggrieved by the same, petitioner is before this Court contending that O.S No.5735/2008 is also to be transferred to the same Court.

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Sri. P.D. Surana, learned counsel for the petitioner submitted that:

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12.1. Essentially the dispute in all the suits that will have to be decided is in relation to partnership and dissolution thereof, allotment of various portions of the property and in pursuance thereof whether gift deed has been properly executed or not has be considered.

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12.2. As regards dissolution of partnership deed there could not be any finding rendered in the suit relating to eviction between the parties.

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12.3. The parties in all the suits being more or less

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one and the same and subject matter of the suits being disputes between the family members inter -se as also with third parties, also as regards whether they are family members or not, has to be decided in the partition suit which would also to take into consideration the dissolution of the partnership.

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12.4. There would be a requirement for leading

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evidence on the aspect of the dissolution deed and also relationship of the parties in all the matters. Therefore, if all the suits are tried separately there would be duplicity of evidence as also contradiction in evidence lead in different proceedings resulting in wastage of judicial time and as such, O.S No.5735/2008 ought to have been

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transferred to the same Court as other matters have been transferred.

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Sri. Deepak, learned counsel for respondents No.1 and 2 would submit that they being the tenants in the properties he has nothing to say as regards the transfer of suit. Similar is the submission made on behalf of another tenant-respondent No.8 by the learned counsel Smt. Tejaswini.

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Respondent Nos.11 and 12 have been added as party respondents in these proceedings, though they are not parties to the miscellaneous petition.

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Respondent No.12 is a purchaser of a portion of the property subject matter of the partition suit, Sri. Shravanth Arya Tandra, learned counsel for respondent No.12 though objects to the fact that respondent No.12 was not made a party in the Miscellaneous proceedings, he has no objection per se as regards the transfer. He submits that petition

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in Misc.P.No.438/2019 has been filed without impleading respondent No.12 who is a purchaser of the property who had right in the property.

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The objection to the above petition comes only from respondent Nos.3, 4 and 7. Respondents No.5 and 6 having expired, respondents No.3, 4 and 7 have been treated as legal representatives of respondents No.5 and 6.

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Ms. Jyothi Bhat, learned counsel for the respondent Nos.3, 4 and 7 submits that:

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17.1. This Court would not have jurisdiction to entertain the above Civil Revision Petition by relying upon the decision of Apex Court in the case of SHER SINGH (DEAD) BY LRS.

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v. JOINT DIRECTOR OF CONSOLIDATION

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AND OTHERS reported in (1978) 3 SCC 172 more particularly paragraphs 5, 7, 12 which are reproduced herein.

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“5. As the above section is pari materia with section 115 of the Code of Civil Procedure, it will be profitable to ascertain the scope of the revisional jurisdiction of the High Court. It is now well settled that the revisional jurisdiction of the High Court is confined to cases of illegal or irregular exercise or non-exercise or illegal assumption of the jurisdiction by the subordinate courts. If a subordinate court is found to possess the jurisdiction to decide a matter, it cannot be said to exercise it illegally or with material irregularity even if it decides the matter wrongly. In other words, it is not open to the High Court while exercising its jurisdiction under section 115 of the Code of Civil Procedure to correct errors of fact howsoever gross or even errors of law unless the errors have relation to the jurisdiction of the- Court to try the dispute itself.

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7. Again in Balakrishna Udayar v. Vasudeva Aiyar(2) the Privy Council while discussing the scope of section 115 of the Code of Civil Procedure observed :

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"It will be observed that the section applies to jurisdiction alone, the irregular exercise or non-exercise of it, or the illegal assumption of it. The section is not directed against conclusions of law or fact in which the question of jurisdiction is not involved."

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12. The position that emerges from these decisions is that section 115 of the Code of Civil Procedure empowers the High Court to satisfy itself on three matters : (a) that the order of the

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subordinate Court is within its jurisdiction;

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(b) that the case is one in which the Court ought to have exercised jurisdiction; and failed to do so (c) that in exercising jurisdiction the Court has not acted illegally, that is, in breach of some provisions of law, or with material irregularity by committing some error of procedure in the course of the trial which is material in that it may have affected the) ultimate decision. And if the High Court is satisfied that there is no error in regard to any of these three matters, it has no power to interfere merely because it differs from (1) [1956] 1 S.C.R. 102. (2) [1973] 1 S.C.R. 697.

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The conclusions of the subordinate Court on questions of fact or law. A distinction must be drawn between the errors committed by subordinate courts in deciding question of law which have relation to, or are concerned with, questions of jurisdiction of the said courts, and errors of law which have no such relation or connection. An erroneous decision on a question of fact or of law reached by the subordinate Court which has no relation to question of jurisdiction of that Court, cannot be corrected by the High Court under section 115.

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17.2. Referring to aforesaid decision and

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paragraphs, she submits that this Court ought not to exercise its power under

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Section 115 of CPC merely because the trial Court has come to an erroneous decision on question of fact or law when the same does not have a relation of jurisdiction of the Court to try the dispute.

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17.3. In the present case, she submits that the submission made by learned counsel Sri.P.D.Surana is not relatable to exercise of power under Section 115 of CPC.

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17.4. On facts, she submitted that O.S No.5735/2008 being one for partition would have to be treated differently than the suit for ejectment and challenge of gift deed, evidence and issues arising in the matters being different, the trial Court has rightly accepted the contention of respondents No.3, 4 and 7 before it and rejected the transfer of suit in O.S No.5735/2008. Therefore, she submits that the same would

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not require any interference by this Court in exercise of revisional jurisdiction.

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17.5. If all the suits are connected and tried together it would enlarge the scope of the suit inasmuch as on an earlier occasion when the petitioner had sought to implead himself in O.S No.254/2009, the said impleading application came to be dismissed. The petitioner has challenged the same in a writ petition before this Court which came to be allowed and thereafter, respondent No.3 had approached the Hon’ble Apex Court and the Apex Court by its order dated 04.04.2012 while dismissing the Special Leave Petition observed that by impleadment of petitioner

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the controversy in the suits filed by the petitioner i.e. respondent No.3 herein shall not be enlarged. She submits that the same principle would apply to the present transfer

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petition also, if all the suits are tried together the scope would be enlarged.

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In rejoinder, Sri. P.D.Surana, learned counsel for the petitioner would submit that:

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18.1. He relies on the decision in M.V.GANESH PRASAD v. VASUDEVAMURTHY AND

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OTHERS reported in AIR 2003 KAR 39 and contends that the proviso to Section 115 of CPC would not be attracted in transfer petition as held in paragraph 16 thereof which is reproduced hereunder for reference.

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“ 16. In the instant case the impugned order is an order passed on a petition filed before the District Judge under Section 24, C.P.C. and in a proceeding independent of O. S. 92/98 which was pending before the trial Court which was sought to be transferred. It cannot be said that the impugned order, passed by the learned District Judge under Section 24, C.P.C. is an order passed in a pending proceedings in a suit, though the prayer in the application under Section 24 is for transferring the pending suit to some other Court which has Jurisdiction. The order cannot be characterised as an order passed in the pending suit itself. If this is so, the proviso to Section 115, C. P. C. is not attracted and as such the preliminary objection sought to be raised on behalf of the respondent cannot be accepted. The ratio laid

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down by the Supreme Court in the case of Mahaveer Prasad Singh v. Jacks Aviation Pvt. Ltd., is not attracted to the facts of the present case. Accordingly the preliminary objection is rejected.”

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Heard., Sri. P.D. Surana, learned counsel for the petitioner, Sri. Deepak, learned counsel for respondents No.1 and 2, Smt.Jyothi Bhat, learned counsel for respondents No.3, 4 and 7, Smt. Tejaswini, learned counsel for respondent No.8 and Sri. Shravanth Arya Tandra, learned counsel for respondent No.12. There is no appearance for respondent Nos.9, 10 and 11. Smt. Jyothi Bhat, learned counsel submits that respondent No.9 does not exist. Perused the papers.

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The point that would arise for determination of this Court are as under:

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1. Whether there is a bar for this Court to exercise jurisdiction under Section 115 of CPC in the present matter?

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2. Whether transfer of an cases to one Court would enlarge the scope of the suit in the proceedings?

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3. Whether any grounds are made out by the petitioner to interfere with the impugned order dated 05.01.2021?

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4. What Order?

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Answer to Point No.1: Whether there is a bar for this Court to exercise jurisdiction under Section 115 of CPC in the present matter?

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20.1 Ms. Jyothi Bhat relying upon the decision in 1978(3) SCC 172 has sought to contend that unless the order passed by the Court relates to question of jurisdiction of that Court, the same cannot be corrected by the High Court under Section 115 of CPC.

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20.2 Now, what is to be decided by this Court is whether the order passed under Section 24 of CPC is one in exercise of jurisdiction or not and more particularly, the impugned order dated 05.01.2021.

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20.3 Section 115 of CPC reads as under :

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"115. Revision. - [(1)] The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal

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lies thereto, and if such subordinate Court appears

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(a) to have exercised a jurisdiction not vested in it by law, or

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(b) to have failed to exercise a jurisdiction so vested, or (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity,

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the High Court may make such order in the case as it thinks fit:

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2[Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision would have finally disposed of the suit or other proceedings.]

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3[(2) The High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto.

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4[(3) A revision shall not operate as a stay of suit or other proceeding before the Court except where such suit or other proceeding is stayed by the High Court.]

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Explanation --.In this section, the expression "any case which has been decided" includes any order made, or any order deciding an issue in the course of a suit or other proceeding.]"

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20.4 Section 24 of CPC reads as under:

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"24. General power of transfer and withdrawal - (1) On the application of any of the parties and after notice to the parties and after hearing such of them as desired to be heard, or of its own motion without such notice, the High Court or the District Court may at any stage

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(a) transfer any suit, appeal or other proceeding pending before it for trial or disposal to any Court subordinate to it and competent to try or dispose of the same, or

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(b) withdraw any suit, appeal or other proceeding pending in any Court subordinate to it, and

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(i) try or dispose of the same; or

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(ii) transfer the same for trial or disposal to any Court subordinate to it and competent to try or dispose of the same; or

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(iii) retransfer the same for trial or disposal to the Court from which it was withdrawn.

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(2) Where any suit or proceeding has been transferred or withdrawn under sub-section (1), the Court which¹ [is thereafter to try or dispose of such suit or proceeding] may, subject to any special directions in the case of an order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn.

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(3) For the purposes of this section,

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(a) Courts of Additional and Assistant Judges shall be deemed to be subordinate to the District Court;

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(b) proceeding includes a proceeding for the execution of a decree or order].

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(4) The Court trying any suit transferred or withdrawn under this section from a Court of Small Causes shall, for the purposes of such suit, be deemed to be a Court of Small Causes.

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3[(5) A suit or proceeding may be transferred under this section from a Court which has no jurisdiction to try it.]"

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20.5 In terms of Section 24 of CPC, on an application being made by any of the parties, the High Court or District Court may at any stage transfer a suit or appeal or other proceedings pending before it for trial or disposal to any Court subordinate to it and competent to try or dispose of the same.

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20.6 Normally a suit is filed in a particular pecuniary or territorial jurisdiction. The power exercised under Section 24 of CPC would be over and above normal pecuniary or territorial jurisdiction, authorizing and empowering the High Court or District Court to transfer a particular suit from one Court to

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other even though the said court may or may not have pecuniary or territorial jurisdiction.

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20.7 Thus, exercising power under Section 24 of CPC, the Court in which a particular suit is transferred would be conferred with the jurisdiction and could try that particular suit, even though initially that particular Court may or may not have pecuniary or territorial jurisdiction for the matter.

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20.8 It is for this reason that this Court in M.V.Ganesh Prasad –v-

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M.L.Vasudevamurthy and others [ AIR

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2003 KAR 39] has categorically held that the bar under Section 115 of CPC would not

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be attracted in so far as the powers exercised under Section 24 of CPC is concerned because power exercised under Section 24 of CPC is transfer jurisdiction

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which is different from the power exercised by the Court in normal circumstances while deciding a matter.

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20.9 In that view of the matter, the decision relied upon by the learned counsel for respondent Nos.3, 4 and 7 in Sher Singh’s case in my considered opinion, would not be applicable.

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20.10 Be that as it may, even otherwise in paragraph No.12 of Sher Singh’s case, the Apex Court has held that the power under Section 115 of CPC can be exercised when the order passed by the Trial Court relates to a question of jurisdiction of that Court. The exercise of power under Section 24 of CPC being an exercise of power relating to jurisdiction of that Court, as also the power of transferring the case from one jurisdiction to another, in my considered opinion the decision in Sher Singh’s case would also not

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be applicable to the present facts and circumstances.

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20.11 Hence, I answer point No.1 by holding that there is no bar for this Court to exercise power under Section 115 of CPC while dealing with the matters relating to the order passed under Section 24 of CPC.

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21 Answer to point No.2 : Whether transfer of all cases to one Court would enlarge the scope of the suit in the proceedings?

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21.2 The contention of Ms Jyothi Bhat, learned counsel for respondent Nos.3, 4 and 7 is that if all the suits are transferred to one Court, the scope and ambit of the proceedings would stand enlarged, and therefore, they ought not to be transferred.

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21.3 As dealt with above and observed above, essentially in a partition suit or in ejection suit or in the suit relating to challenge to the

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gift deed, the basis laid down by the plaintiff and or defendant in each of the suits relates back to the partnership firm namely Krishnavathi and Company and the dissolution thereof, which would or would not confer right or authority on the parties as regards the property bearing No.10/1, Palace Road, Bengaluru which is essentially subject matter in all the suits, though in O.S.No.5735/2008 being a partition suit, there are many other and different properties mentioned in the schedule.

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21.4 On inquiry, Sri P.D Surana learned counsel submits that apart from the properties situated at No.10/1, Lakshminarayana complex, the majority of the properties mentioned in O.S.No.5735/2008 have been disposed of. Ms Jyothi Bhat, however, would submit that apart from property under

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Municipal No.10/1, Palace Road, Bengaluru, other property still continue to be part and parcel of the suit in O.S.No.5735/2008.

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21.5 It is, however to be observed that the property which is subject matter of all the suits subject matter of the suits is Municipal No.10/1, Palace Road, Bengaluru.

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21.6 The Trial Court by way of the impugned order has transferred four suits to Court Hall No.69 but retained the suit for partition n O.S.No.5735/2008 by rejecting the transfer of O.S.No.5735/2008.

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21.7 As observed above, the only reasons which have been given is that the issue in partition suit and ejection suit are not one and the same. Further that no prejudice would be caused in view of the fact that parties have filed suit for partition.

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21.8 As observed above, basis for all claims in all

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the suits being partnership deed and the dissolution thereof, there would have to be examination-in-chief and cross-examination conducted in all the matters as regards that part. Thus, if separate examination-in-chief and separate cross-examination is conducted in different proceedings, there could be scope for contradiction which could be sought to be improved upon while leading evidence in other matters. This would definitely have impact in all disputes

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between the parties. Apart there from, the parties in all suits are more or less same or a subset of parties in a Miscellaneous petition.

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21.9 Though Ms Jyothi Bhat is right in contending that there cannot be a common judgment passed in all the matters since the issues which are involved in different suits are

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distinct, therefore different findings are required to be rendered.

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21.10 In my considered opinion, there would be no bar for the Court to club all suits and hold a common trial and thereafter pass different judgments in different suits. This would obviate the contradictions or otherwise in the evidence, which could be led in different suits.

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21.11 In view thereof, prejudice has been caused by the trial Court not exercising jurisdiction to transfer the case in O.S.no.5735/2008. The finding which has resulted in the Trial Court not exercising power vested in it for transferring of a case to a particular Court so as to have a common trial in those matters, this non-exercise of power resulted in above anomalous situation, which may result in contradictory evidence being placed on

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record and this contradictory evidence when used in other proceedings, could lead to a miscarriage of justice which would affect the interest of the parties.

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21.12 In view of the above, I am of the considered opinion that trying all the suits by one Court would not amount to enlargement of scope of suit, in as much as, what would be done is only a common trial that could be held. Thereafter, decision in each of the suits could be rendered separately by a particular Court.

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Answer to point No.3 : Whether any grounds are made out by the petitioner to interfere with the impugned order dated 05.01.2021 ?

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22.1 In view of the answer to point Nos.1 and 2,

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this Court has jurisdiction to exercise jurisdiction under Section 115 of CPC and having come to the conclusion that the Trial Court has failed to exercise jurisdiction in a proper perspective and exercise of jurisdiction

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CRP No.49/2021

¶207

¶208

is improper this Court would have to correct

¶209

the same. Hence, I pass the following :

¶210

::O R D E R::

¶211

Order dated 05.01.2021 passed by the Principal Civil Judge, Bengaluru in Miscellaneous No.438/1998 is hereby modified.

¶212

O.S No.5735/2008 pending on the file of CCH-45 is withdrawn from CCH-45 and transferred to CCH-69, where other suits have been transferred by the Trial Court with a direction for the said Court to hold a common trial and pass separate judgments in each of the suits.

¶213

No order as to costs.

¶214

Sd/JUDGE

¶215

UN/NMS

Bhawandas Sharma v. Indian Overseas Bank

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Bhawandas Sharma v. Indian Overseas Bank

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