KALI CHARAN DUTT Vs. MANODABALA DASI

JUDGEMENT

(1.) We are invited in this Rule to set aside an order whereby the Court below has directed the consolidation of two suits commenced by the petitioners along with a third suit wherein the petitioners are defendants. It appears that on the 26th May 1910, the petitioners sued to recover a sum of Rs. 15,924 on a hat-chita said to have been executed on the 16th May 1906. On the 23rd September 1910, they commenced another suit to recover a sum of Rs. 13,085 on a mortgage-bond alleged to have been executed in their favour on the 16th May 1906. In the interval, some of the defendants had commenced a suit against the petitioners on the 11th July 1910 for accounts of a partnership founded on an indenture executed on the 17th April 1907. The petitioners are not parties to this document; but the case for the opposite party is that they were really interested in the partnership transaction. Daring the pendency of these three suits, one Manadasundari Dassi applied to be added as a party defendant in. the money suit and the mortgage suit and also as a plaintiff in the partnership suit. Her allegation was that on the 18th October 1910, that is after the commencement of these suits, she had acquired by purchase the interest of two of the infant defendants. The Court granted this application and allowed her to file written statement in the money and in the mortgage suits. She thereafter applied for consolidation of the three suits, and her allegation substantially was that the money advanced on the hat chita and on the mortgage-bond had been applied for the purpose of the partnership transaction. The petitioners opposed the application; but their objection was ever ruled and on the 11th November 1911, the Subordinate Judge made the order now under consideration. He has held that in these three suits, the substantial parties are the same, and some of the points raised, rightly or wrongly, are common to them, and, so it would be convenient to try them together, in that the evidence on the common points will be the same in all the suits. In support of the Rule, it has been contended, first, that the Court had no jurisdiction to make an order for consolidation, and secondly, that the grounds assigned do not justify the order in question.

(2.) In so far as the first ground is concerned, our attention has been drawn to Rule 4 of Order XLV of the Code of 1908, which expressly provides for consolidation of suits for the purpose of pecuniary valuation of appeals to His Majesty in Council. It has been argued that the absence of a similar provision in relation to suits justifies the conclusion that the Legislature did not intend that suits should be consolidated except by consent of parties. We are not prepared to accept this contention as well founded. The history of the rule to which our attention has been invited is well known. Under the Cede of 1882, there had been divergence of judicial opinion upon the question whether consolidation was permissible in case of appeals to His Majesty in Council. It had been held by the High Court of Allahabad, in In the matter of the petition of Khwaja Muhammad Yusuf 18A. 196, that such consolidation was permissible even though the suits had been disposed of by separate judgments. On the other hand, it had been held by this Court, in the cases of Royal Insurance Co. v. Akhoy Koomar 6 C.W.N. 41; Moofti Muhammed UbJoolah v. Mootechund 5 W.R. 34 (P.C.) : 1 M.I.A. 363 and Byjnath v.Graham 11 C. 740 that such consolidation was not permissible except when the cases had been disposed of by one judgment. The rule in question was obviously introduced to settle this divergence of judicial opinion and it does not follow, as has been contended on behalf of the petitioners, that the absence of a similar rule in relation to suits indicates that the Legislature intended that no consolidation was allowable except by consent of parties. We are of opinion, therefore, that an order for consolidation can be made in a proper case in the exercise of the inherent power of the Court, now recognised by Section 151 of the Code of 1908. This view is supported by the decisions in Nehal Singh v. Alai Ahmed 15 W. R. 110; Peacock v. Byjnath 10 C. 58 where consolidation was allowed, and Soorendro Per-shnd v. Nundun Misser 21 W. R. 196; In re S.S. Falls of Ettrick 22 C. 511 where consolidation was refused.

(3.) In so far, however, as the second ground is concerned, we are of opinion that it is well founded. Rule 8 of Order XXXIX of the Rules of the Supreme Court of England indicates that the power of the Court to make an order for consolidation is not affected by anything contained in the rules of the Court, and that the principles applicable to cases of this description, as recognised by the Judicature Act, are to remain unaffected. These principles will be found formulated, in so far as Courts of Equity are concerned, in Daniell on Chancery Practice, Volume II, page 1610, and, in so far as Common Law Courts are concerned, in Chitty--Archbold--on Practice of the Queen s Bench Division (Volume I, page 407). The cases in England are not easy to reconcile, but the true rule appears to be that the Court will, where many actions are oppressively and vexatiously brought by the same plaintiff for the purpose of trying the same question, interfere either by staying the proceedings or giving time to plead in all the actions, but only upon terms, or in some other way, as the Courts have an unlimited power over their own process for the purpose of preventing the same being abused or made the instrument of oppression. The question was recently discussed by the Court of Appeal in Englandin the case of Lee v. Aithur (1909) 100 L. T. 61. It was there pointed out that the Court will not consolidate actions commenced by the same plaintiff against different defendants unless the issues to be tried are precisely similar; the Court will, however, make an order of this description by consent of parties. Reference may in this connection be made to Seale v. Seale (1882) Eng. W.N. 83 where it was held that a partition action may be consolidated with an administration action and O Gorman v. Harding (1884) 18 Ir. L.T.R 93 where an action by plaintiff on foot of a guarantee, and an action by the defendant to recover damages for breach of contract and for negligence in relation to an auction-sale, were held entirely distinct and disconnected in their subject-matter, and consolidation was refused. In the case before us, it is perfectly clear, as indeed appears on the face of the order of the Subordinate Judge, that the substantial questions in controversy are not identical. In the money suit and in the mortgage suit, the question raised is, whether the loan was advanced. In the partnership suit, the question is, why are the partners in the transaction and what are their respective rights and liabilities. It is significant that in the partnership suit, the plaintiff seeks to recover Rs. 2,189, whereas in the money suit and in the mortgage suit, considerable sums are claimed. It is not likely, therefore, that the question in controversy between the parties in the money suit and in the mortgage suit can be covered by the decision in the partnership suit. Even if it is established that the money advanced by the petitioners was applied for the purpose of the partnership transaction, it does not follow by any means that the plaintiffs may not be entitled to the relief they seek. On the other hand, it is fairly clear that the object of the opposite party is to tie up the money and the mortgage suits, which in ordinary coarse are likely to be heard and disposed of much sooner than the partnership suit. Under these circumstances, we are of opinion that the order for consolidation ought not to have been made. The Subordinate Judge has plainly acted with material irregularity in the exercise of his jurisdiction, and irremediable mischief might be done, if the Court refused to interfere at this stage Charu Chandra v. Sarat Chandra Singh 12 C.L.J. 537 at p. 544 : 8 Ind. Cas. 87 at p. 90.