1. The first point for consideration is whether the proceedings relating to the filing of the award ought to have been stayed under Section 10 of the CPC. On the one hand it is argued that the Court had no jurisdiction to proceed, while on the other it is contended that S. 10 applies only to suits and that proceedings for the filing of an award, though numbered as a suit and treated as such for convenience, do not come within the meaning of that section. It is also argued that neither S. 10, nor any other section, prescribes a penalty for proceeding in spite of the prohibition, and so the irregularity of doing so would not be fatal to the proceedings, but would be curable, either under S. 99 or the principle underlying it. I need not consider any of these points in this case. Mulla points out at p. 35 of his Code of Civil Procedure that the institution of a second suit is not barred by S. 10; all that it says is that the trial of the suit cannot be proceeded with. It is consequently a rule of procedure pure and simple, and rules of procedure in civil cases can be waived with the consent of the parties: 3 Luck 3141 at p. 321. The parties here not only waived their right to have the other suit stayed but expressly asked that it should proceed and be tried by the same Court along with the present suit. This was done, and the evidence recorded in this case was, by agreement, treated as evidence in the other. Therefore neither side can now turn round and challenge the validity of these proceedings because of S. 10. The next point is more difficult. In the trial Court the two proceedings were kept distinct though they were tried side by side. Separate issues were framed and separate judgments delivered in each case, though on the same date, and separate decrees drawn up. Only one issue was common to the two suits, namely:
Whether the arbitrators were guilty of misconduct and corruption, and was the defendant guilty of fraudulent concealment of the matter which she ought to have disclosed? Were the award proceedings improper? Is the award void?
2. The actual decision on this issue was given in the judgment in the award proceedings. The judgment in the present case merely states that “the finding on this issue is that in the cross-case (No. 71 of 1932).” It then briefly summarises that finding. According to a Lahore Full Bench decision this would ordinarily constitute one judgment and not two: 8 Lah 384.2 Tek Chand, J. gives the following test:
The test is whether a judge has applied his mind to the decision of the issue involved in the two suits twice, or whether there has been in reality but one trial, one finding and one decision.
3. If that is the only test, then of course there was but one judgment in the two cases. But I do not think that test can always apply, and I doubt whether Tek Chand, J. meant it so. As Dalip Singh, J. points out in his dissenting judgment, there may be cases in which the judgments, though identical, are meant to be separate. The real question is one of intention rather than one of form.
4. The same thing happened in the appeals in these cases, with this Exception. The main judgment was delivered in the present case and not in the award proceedings as in the first Court. The appellate judgment there consists of but one sentence:
For the reasons given in my judgment delivered today in Civil Appeal No. 76 of 1932, Gangaprasad v. Banaspati, this appeal is dismissed with costs on the appellant.
5. So here again there was only one judgment if the test given by Tek Chand, J. is of unvarying application. After this, the two proceedings diverged. No second appeal lies against an order filing an arbitration award, and the revision which was preferred was filed beyond time and was rejected for that reason. The question now is whether the appellant in this case can continue to challenge the validity of the award. There is a sharp divergence of judicial opinion on this point. All the cases on both sides have been elaborately analysed in the Lahore Full Bench decision. So there is no point in my covering the same ground. It is enough to state that the majority view proceeds on the assumption that the two suits are consolidated into one, and that this can be done without a formal order of consolidation. Once that is done, it naturally follows that there can be only one judgment and one decree in one suit, and that only one appeal is necessary.
6. There is no provision in the Code of Civil Procedure corresponding to O. 49 of the rules of the Supreme Court expressly empowering Courts in this country to consolidate two suits into one. But I agree with the learned Judges in the Lahore case, and there is no dissent between them on this point, that as the Code is not exhaustive, Courts have inherent power to do this. I agree further, that even though no formal order for consolidation is passed the effect is the same when the suits are actually tried together with the consent of the parties and the approval of the Court, and when there is but one decision, and not two separate though identical decisions. But I do not agree that consolidation can be presumed every time two cases are tried side by side, even though they are governed by one judgment, and I do not think the learned Judges in the Lahore Full Bench meant to go as far as that. Consolidation is the exception and not the rule, so in my opinion, Courts should be slow to presume its existence when there is no express order to that effect, especially as the Code does not allow consolidation in express terms. If I may put it in this way, there can be no such thing as unconscious consolidation, and in every case the question must be whether the fact of consolidation was present to the mind of the Court, and whether it did consolidate the proceedings even though it omitted to pass a formal order to that effect.
7. The present suit was filed on 18th July 1930 and the other on 11th September 1930. They proceeded independently till 5th February 1931 when they were both transferred to the Second Subordinate Judge, First Class. After that though they proceeded side by side there is no trace of consolidation till 17th February 1932. Pleadings were recorded separately in each, and though the substance is the same on the common issue, they are by no means identical. Then again the present suit was dismissed for default on 26th August 1931, while the other proceeded ex parte, and on 31st August 1931 the plaintiff in that case was asked to adduce evidence. On 12th December 1931 separate issues were framed in the two cases. It is not till 17th February 1932, when both cases were again transferred, this time to the Additional Subordinate Judge, First Class, that there is anything which can be construed as consolidation. The order-sheet of that date in the connected case reads:
Future orders will be found in the connected case No. 70 of 1932. Evidence in that case will be read in this.
8. But in spite of that the learned Judge continued to record his orders separately in the two cases, and they are not identical nor were the hearings on the same date. For instance the next hearing in the award case was on 3rd March 1932, while in this suit it was on 29th March 1932, and there was no hearing of the other case on that date. The judgments though delivered on the same date are not identical. The judgment in the award case deals fully with issues about the award, while the judgment in this case deals fully with five issues which do not arise in the other, and then, naturally enough, refers to the decision in the other case on the issue relating to the award. But that is not an unusual occurrence. It sometimes happens in cases in which there can be no question of consolidation, especially on issues of law. Then again the two suits are not of the same nature though they have points in common. Only one appeal is allowed in the award case, and not two as in this. Separate decrees were drawn up, and each case has separately followed its normal course of appeal and second appeal on the one hand, and appeal and revision on the other. So the parties do not seem to have treated the two as one case, and in the circumstances I cannot think the learned Judge, who tried the cases, did so either.
9. As regards the appeal, I doubt whether cases can be consolidated at the appellate stage when they have been treated separately in the first Court. But even if they can, it would, in my opinion, require something much stronger to presume consolidation than the mere fact that the judgment in the one case states that its reasons are embodied, on a particular issue, in the other. This is especially so, when, as here, no second appeal lies in one of the two cases. That being so it is unnecessary for me to discuss the law so elaborately considered in the Lahore Full Bench. Even if the majority view be right, and I express no opinion about that, it does not apply here. In the absence of consolidation there can be no doubt about the question of res judicata. Explanation 1 to Section 11 of the CPC resolves all doubts on that score. It is the date of the decision that counts and not of the institution of the suit. The same rule applies to appeals. Therefore since the award cannot be challenged any longer the present appeal must fail, for the award is a complete answer to the plaintiff's suit. It hardly matters whether S. 11 applies in terms to proceedings under Sch. 2 or not, for the principle underlying it certainly does. It was then argued that even though it is not possible for the plaintiff to challenge the fact that there was a reference to arbitration, and an award, and that there was no misconduct, etc., he can still question its validity on the ground that it has not been registered. But this question also is barred by the rule of constructive res judicata. Mulla states at p. 96 of his Registration Act that if an application is made to the Court to file an unregistered award which requires registration, then the Court must reject it. It follows this is one of the grounds which can be urged against the filing of an award. If it is not urged, and the award is filed, then that question is as much barred in a subsequent suit as the others. Incidentally this point is raised here for the first time. The appeal fails and is dismissed with costs.
K.B/V.V
10. Appeal dismissed.