1102 PLP 2179 (MLD)

SARDAR SAID MUHAMMAD KHAN, C.J.‑‑‑This appeal has been directed against the judgment of the High Court dated 25‑1‑1992, whereby the revision petition riled by Saddar Din, respondent, was accepted and the order of Sub‑Judge dated 2‑9‑1991 was set aside. The facts giving rise to the present appeal are that a suit for possession of Plot No.321, measuirng 10 Marlas, situate in Dudyal Hamlet, was filed by Muhammad Mehrban, appellant herein, in the Court of Sub‑Judge, Dudyal, on 21‑3‑1987. After recording the evidence of the parties, the case was fixed for arguments on 6‑4‑1989. Somehow or the other, the arguments could not be heard in the case and several adjournments were given by the Court. Saddar Din, defendant‑respondent, riled a cross‑suit on 14‑3‑1990 against Muhammad Mehrban, appellant herein, alleging that he had purchased 10 Marlas of land out of Plot No.321, in Dudyal Hamlet, through an oral transaction and had constructed a house over the same costing Rs.2,00,000 (Rupees two lacs); in alternative he also prayed for declaration that his adverse possession over the plot had ripened into' ownership. After the written statement riled in the case by the appellant, herein, the trial Court, vide interim order, dated 9‑9‑1990, instead of hearing arguments in the suit riled by Muhammad Mehrban, appellant, ordered to keep the decision in the former suit pending on the ground that a cross‑suit had been riled by Saddar Din, respondent. On 12‑11‑1990, the learned Sub‑Judge passed order whereby he consolidated both the suits and directed that the proceedings shall continue in the suit entitled Muhammad Mehrban v. Saddar Din on 2‑9‑1991, the trial Court passed an order stating that the evidence of the parties had already been recorded in the suit filed by Muhammad Mehrban and the additional issues do not arise due to the institution of the suit by Saddar Din, except that of jurisdiction of the Court to try the same. Consequently, the learned Sub‑Judge framed an additional issue in terms as to whether the Court had the jurisdiction to try the subsequent suit. It was also recorded by the trial Court in its interim order that Saddar Din, respondent, did not want to lead any evidence on the additional issue framed. Consequently, the trial Court fixed the suits for arguments but meanwhile a revision petition was filed by Saddar Din, respondent, in the High Court praying that he should be given an opportunity to adduce evidence on tile additional issue, i.e. regarding the jurisdictional competence of the Court. The stand taken in the revision petition was that irrespective of the order of the trial Court that Saddar Din, respondent, did not intend .to lead evidence, he was entitled to an opportunity to lead evidence on the additional issue. The learned single Judge in the High Court came to the conclusion that despite consolidation of the suits, the respondents were entitled to lead evidence on the additional issue. Muhammad Mehrban, appellant herein, assails the order of the High Court on the ground that as the issue regarding the jurisdictional value of the house was also subject‑matter of the former suit, no further evidence was necessary, especially so when the respondent had declined to lead any evidence. ' We have heard the arguments and perused the record. It has been contended by Mr. Nazir Ahmad Ghouri, Advocate, the learned counsel for the appellant, that the trial Court should have heard the arguments in the suits because the respondent, Saddar Din, did not want to lead any evidence on the additional issue and even otherwise the issue regarding jurisdictional value of the property in dispute was also subject‑matter in the former suit wherein the evidence had already been recorded. According to the learned counsel ftlr the appellant, the High Court was not justified in passing the impugned order to the effect that the respondent‑plaintiff should have been provided an opportunity to lead evidence on the additional issue framed by the trial Court. He has cited some authorities purporting to be supportive of his contention. In Muhammad Saleem v. Hafiz Ahmad Din P L D 1975 Lah. 425, it was held that the issue of law regarding the territorial jurisdiction of the Court should be decided as a preliminary issue and the Court was not justified in refusing to decide the issue of law as a preliminary issue. In Muhammad Nasrullah v. Muhammad Ayaz Khan P L D 1975 Lah. 886, it was opined that the issues regarding the jurisdiction and the court‑fee should have been treated as preliminary issues and decided first but omission to do so was merely an irregularity which would not vitiate the trial. In case reported as T. Ganapathia Pillai v. N. Somasundaram Pillai AIR 1950 Mad. 213, it was observed that under Order XIV, Rule 2, C.P.C., the Court has discretion to decide a mixed issue involving the question of law and fact as a preliminary issue. In Sowkabai Fandharinath Tukojirai Holkar A I R 1932 Bom. 128, it was held that under Order XIV, Rule 2, C.P.C., a preliminary issue cannot be framed on the question of fact. However, if one or more issues have been framed, the Court is legally competent to decide the same as preliminary issues, postponing the decision on the remaining issues. It is evident that the authorities cited by the learned counsel for the appellant do not deal with the question involved in the present case. As has already been pointed out, in the instant case the question which needs consideration is as to whether the plaintiff‑respondent was entitled to an opportunity to lead evidence on the additional issue or not. Ch. Lal Hussain, the learned counsel for the respondents, has contended that the trial Court was justified in consolidating both the, suits; and that the plaintiff‑respondent has a right to lead evidence on the additional issue framed. He has argued that the plaintiff cannot be deprived of an opportunity to lead evidence on additional issue merely because the suits had been consolidated by the trial Court. The learned counsel has referred to the following authorities in support of his proposition:‑‑ In case reported as Mst. Hafizan v. Muhammad Yasin 1985. C L C 1448, it was held that it is settled principle of law that the Court has inherent power to consolidate two suits together and recast the issues. It was opined that as the cross‑suits pertained to dissolution of marriage and for the restitution of conjugal rights, the same were rightly consolidated and issues were recast. ' In case reported as Pakistan through General Manager PAFI, Lahore v. Messrs Agro Marketing Corpn. 1981 C L C 443, it was observed that it is well‑settled principle of law in view of long chain o` authorities that consolidation of the suits can be ordered by the Court in exercise of its inherent jurisdiction in proper cases and it is not necessary that the parties should give consent to such consolidation. The Court also expressed the view that the purpose of consolidation was to avoid multiplicity of the litigation and to avoid the contradictory decrees. It may be stated that the in the instant case none of the. parties challenges the consolidation order but after giving due consideration to the matter, we are of the view that the consolidation of the suits was not proper in the present case, because it was not conducive to the interest of justice. The trial of the suit for possession filed by the appellant, herein, had already been completed and the same was f‑iced for arguments when the cross‑suit was filed by the respondent. As has been held by the High Court that substantial issues between the parties in both the suits were the same, except that an additional issue regarding the jurisdiction of the Court was framed. We are of the view that irrespective of the question as to whether the plaintiff‑respondent was entitled to lead evidence ‑in the latter suit or not, the moot point which needed resolution in the case is as to whether the consolidation order of the suits was legally justified and conducive to the interest of justice. It may be stated here that both the Courts below have omitted to consider the mandatory provisions contained in section 10 of the C.P.C. For the sake of convenience, section 10 of the C.P.C. is reproduced below:‑‑ . "No Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other Court in Azad Kashmir having jurisdiction to grant the relief claimed, or in any Court beyond the limits of Azad Kashmir established or continued by the Government and having like jurisdiction, or before the Supreme Court." It is evident from bare reading of section 10 of the C.P.C. that it is mandatory to stay the trial of the suit filed subsequently subject to the conditions envisaged therein. It has already been stated that in the instant case not only the parties are the same but the issues arising in the subsequent suit filed by Saddar Din, respondent, are also the same as were framed in the earlier suit tiled by Muhammad Mehrban, appellant; only one additional issue regarding the jurisdictional competence of the trial Court was framed. In such circumstances, it cannot be said that it was conducive to the interest of justice to consolidate the suits and withhold the decision in the former suit. The evidence in the former suit had already been recorded and it was fixed for arguments, how the consolidation of suits could be regarded in the interest of justice. The evidence recorded in the former suit before consolidation cannot be read in the latter suit; at least the parties can be denied the opportunity to lead evidence on an issue framed in the subsequent suit. As the trial in the f earlier suit had already been completed, it was not just to consolidate the suits in exercise of‑inherent powers. The practice of consolidation of suits, which has become .an essential part of our procedure, is meant to advance the ends o justice and not to defeat them. If the main issues in both the suits are identical then the second suit would be barred by the principle of rcs judicata and the question of contradictory decrees does not arise; irrespective of the fact as to whether the former suit is decreed or dismissed, the principle of res judicata will be operative against one or the other party. Thus, the question o possibility of contradictory decrees is not only remote but the fact would not render the provisions of .section 10, C.P.C. as nugatory. Thus, in the instant case the proper course for the trial Court was to postpone the trial of the latter suit and hear the arguments in the suit filed by the appellant, herein, and decide the same. So far as the proceedings in the latter suit are concerned, those would have their legal course after the judgment in the former suit. Although the parties have not questioned the validity of the order of consolidation by the trial Court, yet in the interest of justice we ourselves took note of the fact and set aside the order of consolidation in exercise of the powers which vest in this Court under section 42‑A of the Azad Jammu and Kashmir Interim Constitution Act; 1974 and under Rules 4 and 5 of the Order XLIII of the Azad Jammu and Kashmir Supreme Court Rules, 1978. Consequently, the consolidation order, the order to recast the issues and the impugned order are hereby set aside. It is directed that the trial Court, shall hear the arguments in the former suit filed by the appellant, herein, and decide the same in accordance with law while the proceedings in the suit filed by the respondent, Saddar Din, shall be kept in abeyance as contemplated under section 10 of the Code of Civil Procedure. The orders of the trial Court to recast the issues and to hear arguments in both the suits also stand amended as indicated above. The upshot of the above discussion is that the appeal filed by the appellant is accepted as indicated above. In the circumstances of the case no order is made as to the costs. AA./348/SCA Appeal accepted.