- (1.) THIS is a second appeal by the defendant against the judgment and decree of the learned Senior Civil Judge, Sirohi, dated the 12th August, 1953.
(2.) THE facts giving rise to it are that on the 28th of December, 1958 the plaintiff-firm filed a suit for the recovery of a sum of Rs. 1271/10/6. THE suit was based on a Khata dated Baisakh Sudi 11, Svt. 2003 for Rs. 1149/12/7. It was averred by the plaintiffs that defendant Hansraj had transaction with the firm in two names, firstly, in the name of Labhchand Amichand who were his father and grandfather, and secondly, in the name of Hansraj Lumchand i. e. in his own name and the name of his father. It was further averred that the Khata of Rs. 1149/12/- was sigued by the defendant. THE plaintiffs further claimed Rs. 121/14/6 for interest. THE defendant admitted the execution of Khata on which the suit was founded, but pleaded that he had paid Rs. 300/- and Rs. 500/- on Bhadwa Sudi 8, and Asoj Badi 3, Svt. 2003 respectively. It was also admitted by him that he had another Khata in the name Hansraj Lumbchand, but it was contended that he was entitled to get about Rs. 1500/- from the plaintiffs in that account. THE trial court came to the conclusion that the defendant was not able to prove the payment of Rs. 800/- as asserted by him and, therefore, it passed a decree for Rs. 1264/12/- on 30th November, 1949 Against that decree, the defendant went in appeal which was heard by the learned District Judge, Sirohi. He remanded the suit to the trial court since he was doubtful if the appropriation of the amounts of Rs. 300/- and Rs. 500/- was made in the khata on which the suit was founded or in the other khata of Harsraj Lumbchand. While this suit was still pending, the plaintiffs who had reserved their right to file the suit on the khata of Harsraj Lumbchand, filed another suit for Rs. 447/- against the defendant. This was based on the other khata of the defendant, which was in the name of Hansraj Lumbchand. THE trial court consolidated both the suits and framed the following 8 issues: - (1) Did the defendant purchase 188 bags costing Rs. 2796/3/- from the plaintiffs? Did he take delivery of 28 bags out of them and did he entrust the remaining 160 bags in the plaintiff's for sale? P (2) Has the defendant been properly credited for a sum of Rs. 2,143/10/3 as cost of 160 bags of cotton seeds? P. (3) Did the defendant, on 6. 9. 47, purchase 50 bags of cotton seeds costing 619/4/6/- from the plaintiffs and has the defendant been rightly debited for this amount? P. (4) Has the defendant been rightly debited for a sum of Rs. 53/11/- as loss sustained in ground-nut business and for Rs. 5/6/- as notice charges? P. (5) Should the defendant have been credited for l/3rd instead of l/4th share for the profit of business in rice Phuli? P. (6) Should not the defendant have been credited with Rs. 3/2/-? P. (7) Are Bhabutmal and Sheshmal the owners of the firm Hazarimal Deep Chand? P. (8) Relief? After recording evidence of both the parties, the trial court passed a decree for Rs. 1,684/15/3/- for both the claims on 31st October, 1952. Against this decree and judgment both the parties filed cross appeals which were heard by the learned Senior Civil Judge, Sirohi. The appellate court dismissed the defendant's appeal with costs, The plaintiffs appeal was accepted and the decree of the trial court was modified and increased to Rs. 2009/-; including interest pendente lite. The plaintiffs were further allowed future interest at 3% p. a. on the principal amount from the date of the trial court's decree till realisation. Learned counsel for the appellant has raised three contentions in this Court. His first contention is that the trial court had committed an illegality in consolidating both the suits filed by the plaintiffs. It is urged that the learned District Judge, Sirohi had remanded the case and directed the trial court to inquire in the first case whether on the dates of payment of Rs. 500/- and Rs. 300/-any amount was due in the Khata of Hansraj Lumbchand and whether in order of time any amount was outstanding in the Khatas of Hansraj Lumbchand and Lumbchand Amichand. It has been strenuously argued that the trial court ought to have dealt with the two cases separately and that it had no jurisdiction to combine the two. In support of his argument, learned counsel has referred to In re Sri Sree Raja Velngotti Shri Govind Krishnayachandrulu Varu Bahadur, Maharajah of Venkatgiri (1) and C. R. Balanagayya Chetti vs. Chetri Varadarajulu Chetti (2 ). In the first case, it was held by a Full Bench that the court had no inherent jurisdiction to consolidate appeals in cases disposed of by single judgment of the Tower court so as to enable the appellant to pay court-fee on the value of the codsohdated appeals. ! In the second case it was observed "that the fact that there is a common question in two suits does not entitle a petitioner to an order for consolidation when there are other questions which are not common. The basis for an order for consolidation must be that the two suits involve substantially the same questions". It may be pointed out that in the first case the point which was referred to the Full Bench was whether the court had inherent jurisdiction to consolidate appeals in cases disposed of by a single judgment of the lower court so as to enable the appellant to pay court-fee on the value of the consolidated appeals and file only one vakalatnama and that point was answered in the negative. The question involved in the present case is very different as will shortly be shown hereafter and therefore this case has little bearing on the point raised in the present appeal. As regards the second case cited by learned counsel, it would suffice to say that the learned Judges were considering O. 45 R. 4 G. P. C. O. 45 C. P. C. relates to provisions regarding appeals to the Supreme Court and Rule 4 provides for consolidation of suits for purposes of pecuniary valuation. Both the cases cited by learned counsel for the. appellant, therefore, do not apply to the present case. On the contrary, it may be pointed out that in Hukumchand Baid vs. Kamalanand Singh (3), it was held that although the Code contained no express provision, the court had an inherent power ex debito justitio to consolidate the suits. In Dharam Das vs. Dharam Das (4), it was observed that "where more than two suits in the name of the same trust were sanctioned by the Legal Remembrancer and brought to trial although with different parties in the same court, at the same time, on the same subject-matter, under the seme circumstances and for the same kind of relief, a Judge has clearly power under the Code to consolidate the suits, that is to say, for the purpose of the hearing to merge them into one and treat them as one for all practical purposes". Thus, the inherent power of the court to consolidate suits was recognized both by the Calcutta and Allahabad High Courts. It would, of course, depend on the facts and circumstances of the particular cases whether they should be consolidated or not. In Ramavtar Prasad Varma vs. Satdeolal (5), the. learned Judge laid down a criterion for consolidaitod of the suits. It was observed that "in deciding whether two suits should be consolidate or not the whole question is whether or not in the long run, it will be expeditious and advantageous to all concerned to have the two suits tried together as analogous cases". In that case, the parties were descendants of a common ancestor and the decision of the two suits rested mainly on the determination of the question as to whether or not there was a partition in the family as alleged by one or the other of the contesting parties. It was held that "there was sufficient unity or similarity in the matters in issue in the two suits to warrant their consolidation". Similarly, in Nankoo Nathin vs. Nagnur Parmesh warmma (6), it was held by the learned Judges of a division bench while dealing with the matter relating to consolidation of suits that every court whether a civil court or otherwise, must, therefore, in the absence of express provision for the purpose be deemed to possess inherent powers in its very constitution, i. e. all such powers as are necessary to do the right and undo the wrong in the course of the administration of justice". In that case it was held that both the suits of the plaintiff could be consolidated. I respectfully agree with the observations referred above in the last two cases. In the present case it may be pointed out that in the first instance, the objection about the consolidation of the two suits was raised by the defendant in Civil Revision No. 24 of 1951 before a learned Single Judge of this Court. That application was dismissed in limine holding that the court did possess power under C. P. C. to consolidate the suits. This objection cannot, therefore, be raised for the second time in this Court. Learned counsel for the appellant has stated that his objection was not dealt with in detail in the revision application and therefore I have had to state further reasons to meet his objection. In the present case, the plaintiffs in both the cases are the same and similarly the defendant in both the cases is also the same. The plaintiffs could bring one suit in respect of both the Khatas at the time when they filed the first suit. They had reserved their right to bring the second suit on the second Khata when the first suit was filed and therefore it is clear that they had not abandoned their claim. In the first suit, the defendant's only objection was that he had repaid the amount of Rs. 800/- in the Khata of Lumbchand Amichand on which the first suit was based. According to the plaintiffs, the said amount was paid in the second Khata of Hansraj Lambchand. When the matter went in appeal before the District Judge; he directed the trail court to make an inquiry whether on the date of payment of Rs. 500/- and Rs. 300/- any amount was due in the Khata of Hansraj Lumbchand. This was obviously an inquiry in the second case even though it was filed at that time. The plaintiffs then thought it proper to bring the second suit to resolve the entire dispute between them and the defendant. The second suit was thus very closely connected with the first one and the trial court very rightly consolidated the two suits in order to avoid repetition of evidence in both cases, The main point which the trial court was required to decide was whether the amount of Rs. 800/- was repaid in the Khata of Lumbchand Amichand or Hansraj Lumbchand. This could be better possible by the consolidation of the two suits. There is thus no force in the contention raised by the appellant's learned counsel. The second objection raised by learned counsel is, that the courts below have failed to apply sec. 61 of the Indian Contract Act, although the District Judge, Sirohi had in his order dated 6. 5. 50 pointedly referred to that section. I have given due consideration to this argument and in my opinion it is not tenable. It may be pointed out that secs. 59 to 61 of the Indian Contract Act deal with the matter of appropriation of payments by debtors to creditors. Sec. 59 provides that if a debtor owes several distinct debts to one person and makes payment to him either with express intimation or under circumstances implying that the payment is to be applied to the discharge of some particular debt, then it becomes the duty of the creditor if he accepts the payment, that he must apply it accordingly. Then sec. 60 provides that if the debtor omits to intimate to the creditor and there are no circumstances to show to which debt the payment was meant to be applied by the debtor, then the creditor has a discretion and he can apply that payment to any lawful debt actually due and payable to him by the debtor. Then comes sec. 61 which says that if neither party makes any appropration the payment much be applied in discharge of the debts in order of time, whether they are or are not barred by the law in force for the time being as to the limitation of suits. It further provides that if the debts are of equal standing, the payment shall be applied in discharge of each proportionately. It is obvious that in the present case, there was no question of the application of sec. 61 of the Indian Contract Act, because the creditors' clear case was that Rs. 500/- were paid by the debtor towards the second Khata of Hansraj Lumbchand and that they had appropriated it accordingly. The debtor's case, on the other hand, was that he had made the payment towards the first Khata and therefore the only question which the court was called upon to decide was whether the said payment was made towards the first or the second khata. This was not the case in which both the parties stated that appropriation was not made and therefore, sec. 61 did not come into play. Both the courts below have, after consolidation of the suits, arrived at the concurrent conclusion that the defendant-appellant had made the payment towards the second Khata of Hansraj Lumbchand. The question whether the payment was made towards the second Khata or not is one of fact and therefore the appellant cannot now contest the correctness of that decision in second appeal. There is thus no force in the second contention as well. Learned counsel for the appellant has lastly urged that his client had denied the transactions on which the second suit for Rs. 445/- was based, that there was no evidence except that of the plaintiff Bhabhutmal and his account-books in support of that claim and that both the courts below have committed an error in decreeing that claim on insufficient evidence. It may be observed that in the second suit the plaintiff's claim was that the defendant had purchased 188 bags of cotton seeds, that out of them he took the delivery of 28 bags only and the remaining 160 bags were left with the plaintiffs to be sold by them on behalf of the defendant and that the defendant had further purchased 50 bags of cotton seeds from the plaintiffs. It was further averred that the defendant had business in groundnut with the plaintiffs, that he had sustained a loss of Rs. 53/11/- and was liable to pay the same to them. The defendant demied all the transactions, but both the courts below have arrived at the concurrent conclusion that the defendant's contention was wrong. The first appellate court has found that the defendant was liable to pay to the plaintiffs Rs. 425/4/- on account of these transactions. The question whether the defendant-appellant had transaction with the plaintiffs in cotton-seeds as averred by them, is also one of fact and when both the courts below have arrived at a concurrent conclusion, the matter cannot be agitated again in second appeal. Even then, I have gone into the record, because the contention of the appellant's learned counsel was that the findings of both the courts below were based on no evidence After going through the record, I find that this contention is not tenable, because there is evidence of P. W. 10 Babhutmal and P. W. 2 Kesrimal and their statements are corroborated by their account-books. It further appears that on 9. 10. 50, plaintiff Bhabhutmal had presented an application in the trial court that the defendant had in his possession his own account-books, that he had produced from those books copies only relating to the items of Rs. 300/- and Rs. 500/-, that he had knowingly forged his accounts and therefore withheld the remaining entries, and that his account-books should be called in court, otherwise he would make further forgeries therein. The record of the court shows that arguments were heard on this application and the defendant declined to produce his account-books at that stage. He did not produce his account-books even thereafter. Under the circumstances, the first appellate court was not unjustified in raising a presumption that if the defendant had produced his account-book, they would have supported the entries made in the plaintiff's account books. There (is thus no force in the last contention also No other point has been raised by appellant's learned counsel. The appeal is, therefore, dismissed with costs. . ;