2002 PLP 566 (CLC)

MUSHIR ALAM, J.‑‑‑ This appeal calls in question the order dismissing on application under section 151, C.P.C. (C.M.A. No.2004 of 2001) filed by the appellant/defendant No.2 in Suit No.89 of 1996 seeking consolidation of said suit with Suit No.859 of 1996. Briefly, facts as are necessary for the disposal of this High Court Appeal are that the respondent No.1 had filed Suit No.89 of 1996 for compensation by way of damages in the sum of Rs.1,50,000 against the appellant, respondents Nos.2 and 3 jointly and severally. The cause of action was shown to have arisen on 27‑6‑1996 on account of breach and cancellation of a contract. It appears from the record that subsequently the respondent No.1 filed another suit for compensation by way of damages and the cause of action is shown to have had arisen on 13‑4‑1996 and 14‑4‑1996 when the alleged defamatory news items was published against the plaintiff, this is an action under tort for suffering and mental torture. Both the suits proceeded separately, from the record it appears that an application (C.M.A. No.1941 of 1998) under section 10 read with section 151, C.P.C. for the stay proceeding in Suit No.859 of 1996 was filed same was dismissed vide order, dated 7‑12‑1998 it also appears from the record that another application under section 151, C.P.C. (C.M.A. No.3140 of 1999) was filed by the appellant in Suit No.859 of 1996 seeking consolidation of said suit with Suit No.89 of 1996. Said application was also dismissed, on 25‑5‑1999. The appellant having failed to obtain stay of Suit No.859 of 1996 or any order as to consolidation of both the suits yet made another attempt this time by making an application under section 151, C.P.C. (C.M.A. 2004 of 2001) in Suit No.89 of 1996 praying for consolidation of Suit No.859 of 1996. Learned Single Judge in consideration of the fact that earlier two applications of the similar nature in the other suit (i.e. 859 of 1996) were dismissed held that seeking consolidation in Suit No.859 of 1999 with Suit No.89 of 1996 or vice versa is one and the same thing and further that' Suit No.859 of 1996 is ripe for final arguments while other Suit No.89 of 1996 is still at the stage of the plaintiff (respondent's No.1) evidence. Consequently, the application was dismissed with cost on 27‑3‑2001. Mr. Kundi learned counsel for the appellant contended that there is no embargo in law to make an application for consolidation or stay in a suit despite the fact that similar applications were dismissed in another suit sought to be stayed or consolidated. He further contended that in both the suits parties are same, cause of action is same, subject‑matter is same and it will be expedient if both the suits are consolidated and disposed of by a common judgment in order to avoid conflict of opinion and multifarious proceedings. According to him the orders impugned are illegal, void, perverse erroneous and nullity in‑the eyes of law and cannot be sustained. It is further contended that Suit No.859 of 1996 is ripe for the arguments and the respondent No.1 is prolonging the proceeding in the Suit No.89 of 1996, which was filed earlier in time but is still at the stage of evidence of plaintiff/respondent No.

1. Mr. G.M. Saleem learned counsel for the respondent No. 1 opposed the appeal inter alia, on the ground that besides the parties being same, nothing is common, subject‑matter of both suits is different, based upon altogether different causes of action Suit No.89 of 1996 according to him is for compensation on account of breach of contract and Suit No.859 of 1996 arises under tort for defamation meted out to the respondent. We have heard the arguments and perused the record. Consolidation of the suit is not specifically provided for under Code of Civil Procedure. Order 2, rule 3 recognizes joinder of cause of action plaintiff may join or unite in a suit several causes of action against the same defendant, object of rule is to avoid multiplicity of proceedings, but where it appears to the Court that any cause of action joined in a suit cannot be conveniently tried or disposed together the Court may order separate trials or make such order as may be expedient (Order 2, rule 6, C.P.C.). In case where several causes of action are joined in one suit then objection as to such misjoinder must be taken at the earliest opportunity as provided under Order 2, rule 7, C.P.C. If no such objections are taken at or before settlement of issue same are deemed to have been waived, conversely same can be true where a party has splitted up several causes in more than one proceedings when same could be joined together then objector may apply for consolidation of all causes at the earliest opportunity or where it appears to the Court that several causes of actions can be conveniently tried or disposed of together make order for consolidation and such powers can be exercised under section 151, C.P.C. he may refer to Shahzada Sultan Humayun v. Nasiruddin 1984 CLC 3090. Consolidation means a process of uniting several actions in the one trial in a judgment by the order of the Court, consolidation of action under the Blacks Law Dictionary (6th Edition) is defined as under:‑‑ "Consolidation of actions.‑‑ The act or process of uniting several actions into one trial and judgment, by order of a Court, where all the actions are between the same parties, pending in the same Court, and involving substantially the same subject‑matter, issues and defenses; or the Court may order that one of the actions be tried, and the others decided without trial according to the judgment in the one selected." To avoid likelihood of conflict of opinion, discourage multiplicity of proceedings, duplication of trial of same issue between the same set of parties, to expedite decision, avoid delay and inconvenience, consolidation or joinder of sever actions into one may be ordered by the ‑courts below where it is satisfied that all the causes are:‑‑ (a) Between the same parties'. (b) Before the same Court. (c) Point in issue, defence are substantially common in all such action. (d) Common evidence is to be recorded. (e) Consolidation is applied at an earliest opportunity, before evidence is recorded. In the light of above discussion examining the case of appellant both the suits are between the same party and in the same Court. Suit No.859 of 1996 is ripe for arguments whereas, Suit No.89 of 1996 is still in its infancy as evidence of the plaintiff has not yet been completely recorded trend of the proceeding in Suits No.89 of 1996 reflects that it will take considerable time for the evidence of the defendant to be recorded and stage of both the suits are at quite variance and it will not be possible in near future for the earlier Suit No.89 of 1996 to catch up with Suit No. 859 of 19.96 which is at the final stage. Suit No.89 of 1996 is for damages on account of the breach of contract other Suit No.859 of 1996 is for damages resulting from libelous publication in newspaper claim is founded under tort point in issue, defence, are substantially different in both the suits. Even otherwise, as observed above any objection relating to non‑joinder being analogous two misjoinder of the cause of action in terms of Order 2, rule 7, ought to be taken at earliest possible opportunity. In Suit No.859 of 1996 issues were framed on 10‑3‑1997 and in Suit No.89 of 1996 issues were settled on 2‑11‑1998. Appellant had applied for the, first time for consolidation in Suit No.859 of 1996 in 1999 through C.M.A. 3140 of 1999 whereas issues were framed on 10‑3‑1997 i.e. almost after two years when evidence was completed. Furthermore, subsequent application in Suit No.89 of 1996 subject‑matter of the instant appeal is also hit by the principle of constructive res judicata and Explanation III to section 11, C.P.C. is attracted as the matter in issue relating to the consolidation of both the suits was urged earlier in Suit No.859 of 1996 same was decided on 25‑5‑1999. Appellant took no exception to it, no appeal was filed application for consolidation was repeated in the instant matter after more than one year, on substantially same facts and grounds under circumstances the appellant cannot avoid the implication of principle constructive of res judicata in the present proceeding, as the principle of constructive res judicata are equally applicable to orders passed on applications as well. We find no merit in this appeal, same is accordingly dismissed alongwith listed application. Q.M.H./M.A.K./K‑48/K Appeal dismissed.