' This civil revision is directed against orders dated 5-12-1978 passed by the learned Civil Judge, First Class, Gujranwala on applications moved by the petitioner for consolidation of the two suits instituted by respondent against the petitioner.
2. The facts necessary for the purpose of this revision petition briefly stated are that the respondent-plaintiff filed two suits against the petitioner-defendant, one for recovery of Rs, 17,201.20, and the other for specific performance of the agreement of sale dated 15-3-1968. This latter suit sought that the petitioner-defendant be compelled to specifically perform the aforementioned agreement dated 15-3-1968, whereby he agreed to sell to the respondent-plaintiff a piece of land measuring 121 kanals 16 marlas for Rs, 75,000, out of which price the sum of Rs, 25,000, had been paid as earnest money in the form of supply of coal. Both these suits had been instituted on 11-3-1969. The suits had proceeded for a very long time and when the cases had reached the stage of arguments an application was filed by the petitioner before the trial Court seeking consolidation of the two suits;
3. The application was vehemently resisted by the respondent-plaintiff and it was dismissed by the trial Court vide impugned order dated 5-12-1978. Hence this revision.
4. The only contentions raised by the learned counsel for the petitioner were:- ' Firstly, that there was similarity of causes of action in both the suits and also in the pleadings of the parties and as such the two suits should have been consolidated in the interest of justice; and Secondly, that evidence led by the parties in both the suits will help in arriving at a correct decision in each other if the two suits are consolidated.
5. On the other hand, the learned counsel for the respondent submitted that the suit for recovery was based upon a series of transactions quite different and independent of the one on which the suit for specific performance was filed. He submitted that although the suit for recovery was in relation to the balance price of the supply of coal made to the petitioner yet the transaction of supply of coal, price of which was made the earnest money in the agreement of 'sale which is the basis of suit for specific performance was not included therein. He elaborated his contention by submitting that the supply of coal worth Rs, 25,000, was a single transaction and the price of this supply alone was taken as earnest money in the agreement of sale of land, specific performance of which had been prayed for in the suit in question. The claim for recovery of the amount, he submitted, was in relation to a number of previous and subsequent transactions of supply of coal which had nothing to do with the aforementioned single supply worth Rs, 25,000. He referred to various documents which had been admitted during the trial and also in the written statement filed by the petitioner in the suit for recovery to show that the two transactions were absolutely independent and one had got nothing to do with the other. On this premises, he argued that there was neither identity of causes of action nor of the pleadings and as such the suits, at this belated stage when the trials in both have practically concluded, should not be consolidated and the order of the trial Court dated 5-12-1968 rejecting the application of petitioner should not be interfered with in the exercise of discretionary relief under section 115 of the Civil Procedure Code. The learned counsel relied on Janardan Kishore Lal Sinha Deo and others v. Sib Prasad Ram and others (1).
6. I have given anxious consideration to the controversy involved. I have gone through the pleadings of the parties in both the suits, the issues framed therein and have also perused the order-sheets of both the cases. Would not dilate upon the submission made by the learned counsel for the petitioner as to the effect of the agreement dated 15-3-1968 on the suits questions as I feel that any observations made be me, of whatever tentative nature those may be, can cause prejudice to any one of the parties in the suit which are yet to be decided by the Court seized of the matters. I would suffice by saying that in the suit for recovery there are just two main issue which are usual in money suits whereas in the other suit i, e. One for specific performance there are as many as nine issues framed. The one suit, as already pointed out, proceeds on transactions of supply of coal which had left balance of the amount sought to be recovered, whilst the other suit for specific performance is relatable to one single transaction of supply of coal the price which was made the earnest money in the agreement, specific performance o which has been prayed for.
The pleadings in the two suits therefore do no disclose the same cause of action as asserted by the learned counsel for the petitioner. The mere fact that the evidence in one suit may be helpful to (1)
A 1.R 1917 Cal. 841 party in the other suit cannot also be a ground for consolidation. Both the contentions of the learned counsel for the petitioner, therefore, fail.
7. The position as discussed above apart, the basic factor which to my mind disentitles the petitioner from seeking the discretionary relief of consolidation of suits is the conduct of the petitioner. Both the suits had been filed on 11-3-1969; the written statements therein were filed around May, 1969, and the issues were framed on 28-7-1969. Again in both the suits plaintiff concluded its evidence on 3-6-1970, whilst the petitioner-defendant concluded his evidence on 2- 3-1976. The cases were thereafter adjourned for arguments from time to time mostly on the request of petitioner and on 24-5-1978, the arguments were partly heard. The case was again adjourned for concluding the arguments by the counsel for petitioner when on 8-6-1978, an application for framing an additional issue was filed in she suit for recovery, whilst another application was filed in the other suit, both of which were subsequently dismissed. During the pendency of these applications the applications for consolidation of the two suits were filed which have been disposed of by the trial Court vide the impugned order. The basic premises of the impugned order is that the petitioner bad been using dilatory tactics for keeping in abeyance the finalisation of both the cases and that there was no reason at this belated stage when the trials in both the suits have practically concluded to consolidate them. There is thus no fault which can be found in the impugned order which has been admittedly passed with jurisdiction, especially in view of the above conduct of petitioner of all along using dilatory tactics. The order of the learned trial Court is apparently based on sound judicial principles and the discretion has been exercised by it properly and judiciously.
8. It may also be pointed out that there is no specific provision for consolidation of suits and the Courts have to exercise inherent power only to direct consolidation in cases where it finds that it will be convenient for the parties to have a joint trial of two suits. It is in fact, intended to avoid needless expense and inconvenience to the parties. The deciding factor for directing consolidation of two suits, to me appears to be, whether in the long run it will be expedient and advantageous for all concerned to have two suits tried together as analogous cases. Keeping in view the above principles it obviously follows that the stage for seeking consolidation is the early stage of beginning of trials. It may also be observed that there seems no justification for consolidation of such cases where the trials have already concluded for the inconvenience or expense that are intended to be saved would have already been caused and incurred. I am, therefore, of the view that the Courts should) normally exercise the inherent power to consolidate proceedings only where consolidation is prayed for before the trials begin.
9. Before parting with the case it may be pointed out that in this revision two orders both dated 5- 12-1978 separately passed by the learned Civil Judge, Gujranwala in the aforementioned two suits have been conjointly impugned. This was not permissible and the petitioner should have filed two separate revision petitions. I, however, leave it at that since the revision is. Being dismissed otherwise also on merits.
10. In view of the foregoing discussion no case has been made out by the petitioner which could persuade to interfere in the impugned orders and direct consolidation of the suits at this belated stage in the revisional jurisdiction of this Court.
11. This revision being without merits is dismissed with costs.