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Harinarain Choudhary And Others v. Ram Asish Singh And Others Opposite Party.

Patna High Court

Dec 8, 1955

Judgment

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Structured Summary of the Opinion (Revision arising out of refusal to consolidate Title Suits Nos. 1–3 of 1952)

Factual and Procedural Background

This revision arises from an order dated 21 April 1954 of the Munsif of Barh rejecting the defendants' application to consolidate and hear together Title Suits Nos. 1 to 3 of 1952 as analogous cases. The petitioners in this revision are the defendants in all three title suits; the opposing parties are the plaintiffs in those suits.

Procedural and factual chronology (as stated in the opinion):

A Section 145 Criminal Procedure Code (Cr. PC) proceeding between the petitioners and the opposite parties was decided on 22 January 1951 against the opposite party. That proceeding concerned plots Nos. 503, 504, 505, 506, 460 and a portion of 455.
On 23 January 1952 three separate title suits were filed: Title Suit No. 1 of 1952 (plots 505 and 455) by opposite party No. 1; Title Suit No. 2 of 1952 (plots 506 and 460) by opposite parties Nos. 2–4; and Title Suit No. 3 of 1952 (plot 503) by opposite parties Nos. 5 and 6. The petitioners are defendants in each of these suits.
The suits were originally instituted in the Court of the Munsif at Barh, transferred to the Additional Munsif by District Judge orders, and subsequently retransferred to the Munsif at Barh. The retransfers placed all three suits in the same Court only on 1 April 1954 (Title Suit No. 1 was transferred on 13 April 1953; No. 2 on 9 December 1953; No. 3 on 1 April 1954).
Defendants (petitioners) applied for analogous trial (consolidation) in Title Suit No. 1 on 21 April 1954; that application was rejected the same day on the ground that plaintiff No. 1 had already been examined. A similar application was made in Title Suit No. 2 on 14 April 1954 and rejected on 21 April 1954; the defendants did not separately challenge that order but included the plaintiffs of all three suits in the present revision application.
Earlier applications in Title Suit No. 1 had been made on 19 June 1953 and 4 January 1954, rejected (first impliedly, second expressly on 1 February 1954), but the Court then lacked jurisdiction to order consolidation because the other suits were not yet pending in that Court.
The parties to Title Suit No. 1 agreed to take evidence under Order 18, Rule 16 of the Civil Procedure Code (CPC). The plaintiff in Title Suit No. 1 examined himself as P.W.1 on 1 February 1954. The defendants in Title Suit No. 1 examined seven defence witnesses (D.Ws.1–7) on various dates (10 Dec 1953; 1 Feb 1954; 29 Apr 1954; 7 Jun 1954). Some documents were also exhibited by both sides in Title Suit No. 1. Hearing in Title Suits Nos. 2 and 3 had not started at the time of the order under revision.

Legal Issues Presented

Whether, in the circumstances stated (same defendants across suits, common questions of title and same cause of action arising out of the S.145 proceeding), the three Title Suits Nos. 1–3 of 1952 should be tried together as analogous cases (i.e., whether consolidation should be ordered).
Whether this Court should, in exercise of revisional jurisdiction, interfere with the Munsif's order of 21 April 1954 rejecting the defendants' application for consolidation of those suits.

Arguments of the Parties

Defendants / Petitioners

Applied for consolidation / analogous trial of the three suits on the ground that the suits involved common questions and the defendants are the same in all three suits.
Pointed out that the defendants' title in all suits was claimed on purchases from one Waizul Haque (a co-sharer landlord), indicating unity in the matters in issue.
Previously attempted consolidation by earlier applications (19 June 1953; 4 January 1954) but were unsuccessful because the Court then lacked jurisdiction to consolidate the suits (other suits were not yet before the Court).
Agreed (with plaintiffs in Title Suit No. 1) to examine witnesses under Order 18, Rule 16 CPC (de bene esse evidence), and had several defence witnesses already examined in Title Suit No. 1.

Plaintiffs / Opposite Parties

The opinion records that notice was served on the plaintiffs of all three suits but they did not appear to contest the present application for consolidation.
The Munsif's stated ground, in rejecting the consolidation application, was that plaintiff No. 1 had already been examined and "it would not be proper and convenient" to try the suits together; however, no further reasons were recorded by the Munsif explaining why consolidation would be improper or inconvenient.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Ramavtar Prasad Verma v. Satdeo Lal, AIR 1939 Pat 30 (A)	Where sufficient unity or similarity exists in matters in issue, or the determination rests mainly on a common question, it is convenient to try suits as analogous cases; consolidation may be exercised in the ends of justice to avoid expense and inconvenience.	The Court relied on this principle to assess whether the three suits shared sufficient unity/similarity and common questions of title; after finding such unity, the opinion held consolidation was appropriate.
Mahamad Fazal v. Mahkumar Mahton, AIR 1922 Pat 566 (ILR 1 Pat 669)	The inherent power under Section 151 CPC to consolidate suits is exercisable even without the consent of the parties; consent cannot confer jurisdiction that does not otherwise exist.	The Court invoked this authority to confirm that consolidation could be ordered by the Court of its own motion (or on application) even in the absence of consent, and to justify interference in revisional jurisdiction to order consolidation.

Court's Reasoning and Analysis

The Court proceeded by first stating the governing legal principles: courts have inherent power under Section 151 CPC to consolidate suits where justice and convenience demand it (to avoid needless expense and inconvenience), and consolidation is appropriate when there is sufficient unity or similarity in the matters in issue or when determination rests mainly on a common question (citing Ramavtar Prasad Verma). The Court also relied on authority that this inherent power can be exercised even without the parties' consent (citing Mahamad Fazal).

Applying those principles to the facts before it, the Court analysed the following points (as set out in the opinion):

Identity of parties: the defendants are the same in all three suits though the plaintiffs and the specific suit lands differ.
Common factual/legal basis of defendants' claim: in the plaints the defendants derived title from purchases from Waizul Haque, a co-sharer landlord under the same khewat recorded for all the lands, indicating a common thread in defendants' case across suits.
Plaintiffs' case across suits: plaintiffs in each suit contended that Waizul Haque was only one of several landlords and that plaintiffs' ancestors were tenure-holders under other landlords of the same khewat; this shows a common contest about whether the contested lands belonged to Waizul Haque.
Common procedural history: a single S. 145 Cr. PC proceeding was taken in respect of all the lands and decided on 22 January 1951, and the plaintiffs' suits arise from that proceeding — identified by the Court as the same cause of action across suits.
Extent of prior trial activity: in Title Suit No. 1 a plaintiff witness (P.W.1) and seven defence witnesses (D.Ws.1–7) had been examined under Order 18, Rule 16 CPC; some documents were exhibited. Hearing in the other two suits had not started.
Assessment of the lower Court's decision: the Munsif rejected consolidation on the sole stated ground that plaintiff No. 1 had been examined and that it would be improper and inconvenient to try the suits together, but the Munsif did not explain why or address whether there was sufficient unity or a common question in the pleadings.

On the basis of these facts and the cited legal principles, the Court concluded there was sufficient unity/similarity and a common question to warrant consolidation. The Court also addressed the consequences of the prior de bene esse (Order 18, Rule 16) evidence: because the plaintiffs in the other two suits were not parties to Title Suit No. 1, the evidence already recorded there would not be binding on them. Such evidence could be read at the consolidated hearing only if the other plaintiffs agreed to have that evidence read under clause (3) of Rule 16, Order 18; otherwise the evidence would have to be re-taken afresh in the presence of all plaintiffs.

Holding and Implications

Core Ruling: Rule made absolute — the three suits (Title Suits Nos. 1 to 3 of 1952) are to be tried together by the Court below.

Direct implications and consequences stated in the opinion:

The lower Court's order rejecting consolidation is set aside by this Court in revision, and the three suits are to be tried together as analogous cases.
Evidence already recorded in Title Suit No. 1 (oral testimony and documents taken under Order 18, Rule 16 CPC) is not binding on the plaintiffs of the other two suits because those plaintiffs were not parties to Title Suit No. 1. Such evidence may be read at the consolidated hearing only if the other plaintiffs consent to its being read under clause (3) of Rule 16, Order 18. If they do not consent, the evidence already taken must be re-recorded afresh in the presence of all parties to the consolidated hearing.
Costs: if the suits are ultimately decided in favour of the defendants, the cost incurred by the defendants in examining defence witnesses (D.Ws.1–7) in Title Suit No. 1 "will not form the cost of the suits" (i.e., those examination costs will not be included as costs of the suits). The opinion concludes with the specific order that there will be no order as to costs in this revision.
Expedition: the Court directed the lower Court to expedite the hearing of the three suits, which were ready for hearing, and to try to decide them as quickly as possible (noting the suits had been pending since January 1952).

The opinion does not assert the setting of any new binding precedent; it applies established principles on consolidation and the effect of de bene esse evidence to the facts before the Court.

Disposition

The revisional Court allowed the application and made the rule absolute directing consolidation (analogous trial) of Title Suits Nos. 1–3 of 1952 before the Court below. There will be no order as to costs in the revision.

Show all summary ...

1. Defendants are the petitioners. They have moved this Court in revision against an order, dated the 21st April, 1954 of the Munsif of Barh, rejecting their application for consolidation of Title Suits Nos. 1 to 3 of 1952, and hearing them together as analogous cases.

2. There was a proceeding under Section 145 of the Cr PC between the petitioners and the opposite party, which was decided on the 22nd January, 1951, against the opposite party. To this proceeding, opposite party Nos. 1, 3 and 5, along with two others, were parties as second party; and the defendants, who are petitioners before this Court, were first party. Section 145 proceeding was in respect of plots Nos. 503, 504, 505, 506, 460 and a portion of 455. After the adverse order in the aforesaid proceeding against them, the opposite party, on the 23rd January, 1952, filed three different suits; opposite party No. 1 filed Title Suit No. 1 of 1952, in respect of plots 505 and 455; opposite party Nos. 2 to 4 filed Title Suit No. 2 of 1952, in respect of plots 506 and 460 and opposite party Nos. 5 and 6 filed Title Suit No. 3 of 1952, in respect of plot No. 503.

3. The present petitioners are the defendants in all the three suits. These three suits were instituted originally in the Court of the Munsif at Barh, but, later on, they were all transferred to the Court of the Additional Munsif at the same place on different dates under orders of the District Judge, Patna, But, subsequently, all these three suits were re-transferred to the Court of the Munsif at Barh by the District Judge, Patna. Title Suit No. 1 of 1952 was transferred on the 13th April, 1953, Title Suit No. 2 of 1952 on the 9th December, 1953, and Title Suit No. 3 of 1952 on the 1st April, 1954. All these three suits were, therefore, in the same Court, that is, in the Court below, only on the 1st April, 1954. In Title Suit No. 1 of 1952, the defendants, on the 21st April, 1954 filed a petition for analogous trial, and this petition was rejected on the same date, on the ground that plaintiff No. 1 had already been examined, and it would not be proper and convenient to try the suits analogous. It is against this order that the petitioners have come up in revision.

4. In Title Suit No. 2 of 1952 also on the 14th April, 1954, the defendants-petitioners had made a similar application for analogous trial of the three suits, but it was also rejected on the same day, that is, on the 21st April, 1954. The defendants have not moved against this order, but they have made the plaintiffs of all the three suits parties to the present application.

5. From the order-sheet of Title Suit No. 1 of 1952, it would appear that the defendants made previous attempts also to have the three suits heard together. The first application, in Title Suit No. 1 of 1952, out of which the present application arises, was made on the 19th June, 1953, and the second one was made on the 4th January, 1954; and both these petitions were rejected—the first impliedly, and the second expressly, on the 1st February, 1954. But the Court below had no jurisdiction then to order consolidation of the three suits, because the other two suits were not then pending in its Court. It further appears that the parties, both the plaintiff and the defendants of Title Suit No. 1 of 1952, agreed to the examination of their witnesses according to O. 18, R. 16 of the CPC.

6. Accordingly, the plaintiff of Title Suit No. 1 of 1952 examined himself as a special witness, as P.W 1, on the 1st February, 1954. Order 18, R. 16 provides for the de bene esse examination of a witness about to leave the jurisdiction of the Court, or for other sufficient cause shown to the satisfaction of the Court. The evidence so taken may then be read at any hearing of the suit under Cl. (3) of R. 16 of O. 18 of the Code. A perusal of the order-sheet of Title Suit No. 1 of 1952 further reveals that the defendants also, on the 10th December, 1953, examined two witnesses, namely, D. Ws. 1 and 2; on the 1st February 1954 one witness, namely, D.W 3; on the 29th April, 1954, two witnesses, namely, D.Ws 4 and 5; and on the 7th June, 1954, they examined D.Ws 6 and 7.

7. The result, therefore, is that in Title Suit No. 1 of 1952 one witness on behalf of the plaintiff, and as many as seven witnesses on behalf of the defendants have already been examined under O. 18, R. 16(1) of the CPC. It further appears that some documents have also been exhibited on the side of both parties. The hearing of Title Suits Nos. 2 and 3 of 1952 has not yet started. The question, therefore, is if, in such circumstances, an analogous trial of the three suits should be ordered, and if this Court should interfere, in its revisional jurisdiction, with the order of the Court below refusing to consolidate the three suits.

8. Court has inherent power ex dehito justitiae to consolidate suits, where it is in the ends of justice to do so to avoid needless expense and inconvenience to parties. In deciding whether two or more suits should be consolidated or not, the whole question is whether or not, in the long run it will be expeditious and advantageous to all concerned to have the two suits tried together as analogous cases. Where it appears that there is sufficient unity, or similarity in the matter in issue in the suits or that the determination of the suits rests mainly on a common question, it is convenient to have them tried as analogous cases: see Ramavtar Prasad Verma v. Satdeo Lal, AIR 1939 Pat 30 (A). The inherent power of Court, under Section 151 of the CPC, to consolidate suits is exercisable even without the consent of the parties. If it were not so, it would not have inherent jurisdiction to consolidate at all, for consent of parties cannot confer a jurisdiction that does not exist: see Mahamad Fazal v. Mahkumar Mahton, AIR 1922 Pat 566 (1) : ILR 1 Pat 669 (B).

9. Bearing in mind the above principles, I would now consider the facts and circumstances of the present suits to see if they warrant their consolidation.

10. From the facts stated earlier, it would appear that the defendants are the same in all the three suits, although the plaintiffs are different and the suit lands are also different. From the plaints of the three suits, it appears that the defendants claimed their title on the basis of certain purchases from one Waizul Haque, who was one of the many co-sharer landlords of the khewat under which all these lands are recorded.

11. The case of all the three sets of plaintiffs is that it is not correct that the lands originally be longed to Waizul Haque, because he was only one of the several landlords of the khewat in dispute, and the plaintiffs' ancestors were tenure-holders under the landlords recorded in respect of khewat No. 7. There is therefore, no doubt that only one common question arose for decision in the three suits. The Court below has not at all directed its attention to this aspect of the matter. Only one proceeding under Section 145 of the Cr PC, was also started against all the plaintiffs and the defendants in respect of all the lands in dispute in the three suits, obviously because common questions arose for decision between the parties concerned.

12. The cause of action in all the three suits is also the same, namely, the order passed on the 22nd January, 1951, in the S. 145 proceeding against the plaintiffs of the different suits. In my opinion, therefore, an analogous trial of the three suits would be most convenient and conducive to the benefit of the plaintiffs of all the three suits. The convenience of the parties in the conduct of litigation is certainly a relevant consideration, and it is, perhaps, no too much to say that it is the basis of nearly all statutory jurisdiction on the civil side. The plaintiffs of all the three suits, who have been made parties to the present application, have not, in spite of service of notices on them, appeared to contest this application.

13. The Court below, in rejecting the application of the petitioners for analogous trial, only said that one witness plaintiff No. 1 had already been examined, and, it would not be proper and convenient to try the suits analogous. The learned Munsif, however, has given no reason as to why he considered that it would not be proper and convenient to try the suits together. He has not, as 1 have stated before, considered the pleadings of the parties, in order to find out if really there was sufficient unity or similarity in the matters in issue in the three suits, or that the determination of the three suits rested mainly on some common question.

14. On the other hand, as I have stated before, from a casual reading of the plaints of the three suits, it appears that there is sufficient unity or similarity in the matters in issue in the three suits, and there is a common question to be decided. These facts and circumstances, in my opinion, warrant the consolidation of the three suits; and it is a fit case in which this Court should interfere, in its revisional jurisdiction, with the order complained of. I would, therefore, allow the application, and direct that the three suits namely, Title Suits Nos. 1 to 3 of 1952 should be tried together by the Court below.

15. I may, however, mention one circumstance, namely, the examination of one witness on behalf of the plaintiff and seven witnesses on behalf of the defendants in Title Suit No. 1 of 1952, under O. 18, R. 16 of the Code. The evidence so far recorded and the documents marked as exhibits in Title Suit No. 1 of 1952 will not be binding on the plaintiffs of the other two suits, because they were not Parties to this title suit. The oral and documentary evidence so far taken will therefore, have to be scrapped altogether and taken a new in presence of the plaintiffs of the other two suits, unless the plaintiffs of the other two suits agree that the evidence, oral and documentary, so far taken in Title Suit No. 1 of 1952, under O. 15 R. 16 of the Code should be read at the hearing of the three suits under cl. (3) of R. 16 of O. 18 of the Code.

16. If the plaintiffs of the two suits, however, do not agree to this procedure, then the evidence taken be far will have to be taken afresh. In case the suits are decided in favour of the defendants, the cost incurred by the defendants in examining their defence witnesses, namely, D.W's. 1 to 7, will not form the cost of the suits.

17. I find that the suits were instituted in January, 1952, but yet they have not been brought to a close, even when four years are about to be completed. The Court below will, therefore, expedite the hearing of the three suits, which are ready for hearing, and try to decide them as quickly as possible.

18. With these observations, I would make the rule absolute.

19. There will be no order for costs.

D.H.Z

20. Rule made absolute.