- (1.) THESE are applications for leave to appeal to the Supreme Court against the decision, dated 6th January, 1961, of this Court disposing of Civil Special Appeal No. 4 of 1959 and Civil Special Appeal No, 28 of 1959 by one and the same judgment. Both these appeals were preferred under sec. 18 (1) of the Rajasthan High Court Ordinance. Civil Special Appeal No. 4 of 1959 was directed against the judgment and decree of Bapna J. dated 7th Nov. , 1958, in First Appeal No. 43 of 1954, whereas of Civil Appeal No. 28 of 1959 was directed against the judgment of Modi J. dated 2nd December, 1959 in First Appeal No. 44 of 1954. THESE appeals also arose from two different suits and for the sake of convenience were heard and disposed of by the judgment under appeal, because a common question of law arose in those cases for determination, though the facts in each case were somewhat different. By the decision in question, the judgment of Bapna J. was reversed and that of Modi J. has been upheld.
(2.) THE learned counsel for the petitioners urges that since both the appeals were disposed of by one land the same judgment of this Court, they should be consolidated for purposes of appeal and since the judgment is a judgment of reversal in one of the cases the petitioners are entitled to leave to appeal to the Supreme Court in the ordinary course. He submits that the valuation of the suit and the appeal in one of the cases is Rs. 11,667/4/2 while in the other case Rs. 15,521/13/6. Thus the total valuation came to about Rs. 27000/-and under sec. 110 of the Code of Civil Procedure read with O. XLV, R. 4 of the Code he was entitled to grant of leave to appeal. O. XLV, R. 4, lays down that - "for the purposes of pecuniary valuation, suits involving substantially the same questions for determination and decided by the same judgment may be consolidated, but suits decided by separate judgments shall not be consolidated notwithstanding that they involve substantially the same questions for determination. " THE learned counsel for the petitioners submits that here both the suits had been heard and decided by the same judgment of this Court and the benefit of the Rule should be given to him for purposes of consolidation. THE learned counsel for the respondent opposite party contends that the rule can have no application to a case of this nature where the suits were actually different suits decided by separate judgments. Even on first appeal to this Court they were heard separately and disposed of by two separate judgments and by two different Judges sitting singly. It was only in the case of special appeals preferred under sec. 18 of the Rajasthan High Court Ordinance that for the sake of convenience the two cases came to be heard together and were disposed of by the judgment of this Court against which the appeal is sought to be preferred. There appears to be some divergence of judicial opinion about the construction of O. 45, R. 4. Civil Procedure Code. It is futile to discuss the various cases cited at the Bar because it seems to us that on the face of it the appellants are not entitled to the advantage of the Rule and there can be no consolidation of the suits in the circumstances of this case. Evidently as the language of the Rule shows it applies only to those cases where the suits themselves have been determined and decided by a common judgment and involve substantially the same questions for determination. It is not that the word "appeals" has been used in the Rule. The legislature had a definite purpose in mind in using the word "suits" instead of "appeals" and if the idea was that in appeals also where they were disposed of by the same judgment and involved substantially the same questions for determination, the above Rule would apply the Legislature could have easily said so and had appropriate expressions to give effect to its meaning. We are, therefore, clearly of opinion that rule 4 of Order XLV, will have no application to such a case. It is only for the sake of convenience that we heard the two appeals together, otherwise the two suits were entirely different and had been treated at all earlier stages separately for all intents and purposes. We, therefore, think that the requirements of sec. no are not fulfilled in this case. The next contention of the learned counsel is that the case involves a question of general importance and therefore it should be certified to be a fit case for appeal to the Supreme Court. It is contended that there is no decision of the Supreme Court about the case of a Pakka Arhatiya acting merely as a commission agent, in cases of forward contracts, which are of a wagering nature. Whether a contract is in the nature of a wagering contract depends upon the facts and circumstances of each case and is largely a question of fact. As to the principles on which an inference of wager can be based they are well settled and there are quite a number of authoritative decisions on the point. We, therefore, sec. 10 reason at all to grant leave on the ground that the case is a fit one for appeal to the Supreme Court. The applications for leave to appeal are therefore rejected with costs, hearing fee rupees one hundred. .;