' RAJA MUHAMMAD SHAFQAT KHAN ABBASI, J.--- Through this revision petition, I would like to dispose of a Civil Revision No,76 of 2009, Civil Revision No,100-D of 2009, Civil Revision No,101-D of 2009, Civil Revision No,102- D of 2009, Civil Revision No,103-D of 2009, Civil Revision No,104-D of 2009, Civil Revision No,105-D of 2009, Civil Revision No,106-D of 2009, Civil Revision No,107-D of 2009, Civil Revision No,108-D of 2009, as common questions is involved.
2. Through these revision petitions, the petitioners/defendants have assailed the order dated 18-12- 2008 and 30-4-2007 passed by the learned Additional District Judge, and Civil Judge, Chichawatni whereby the ten suits for the recovery of money of the respondents/plaintiffs were decreed against the petitioners.
3. Brief facts of the case are that petitioners/defendants used to purchase the animal/buffaloes from different persons including respondents/plaintiff Willayat Khan and thereafter they used to send for selling the buffaloes to different cities including Karachi. The case of the respondent/plaintiff Willayat Khan is that petitioners/defendants purchased 10 buffaloes at different ten occasions within span of month or two and each buffalo was valuing Rs,21,000, 18,500, 19,500, 19,150, 20,500, 20,000, 21,000 and 22,000. These buffaloes were allegedly coupled with Katties.
It was contended by the respondent/plaintiff that these buffaloes were purchased by the petitioner/defendant from him on current charge basis and subsequently payment was not made by the petitioner/defendant hence the respondent/ plaintiff filed 10 different suits against the petitioner/defendant. The petitioner/ defendant in each case contended that actually transactions of purchase of buffaloes was made between the respondent/ plaintiff and respondent No,3 Muhammad Yousaf and there occurred dispute about the payment of four buffaloes which was settled through Punchayait and nothing was to be paid by the petitioner/defendant.
4. Ten different suits under the same title between the same parties for the recovery of different amount against the same defendant and common question and facts of law were involved filed by the respondent/plaintiff. All these suits were consolidated by the learned trial Court on 17-6- 2000 due to which the consolidated issues were framed on 17-6-2002 and evidence was recorded in the suit No,135 of 2006 titled as Kaalay Khan and others v. Wahid Khan and suits were contested by the petitioner/defendant by filing written statement in which they controverted the averments of the plaint.
Consolidated Issues
(1) Whether the plaintiff has no cause of action to file this suit? OPD
(2) Whether the suit of the plaintiff is not maintainable in its present form? OPD
(3) Whether the plaintiff has not come to the Court with clean hands? OPD
(4) Whether the suit of the plaintiff is false and frivolous and defendants are entitled to special costs under section 35-A of C.P.C.? OPD
(5) Whether the defendant purchased 10 buffaloes on different occasions for different considerations? OPP
(6) Whether the plaintiff is entitled to a decree as prayed for? OPP
(7) Relief.
5. After consolidation of the proceedings the evidence of the parties was recorded in order to prove his case, plaintiff produced Muhammad Ashraf as P.W.1, Allah Ditta as P.W.2 and Walayat Khan respondent/plaintiff as P.W.3 while the petitioner/defendant No,3 Muhammad Yousaf appeared as D.W.1, Ali Muhammad as D.W.2 and produced certified copy of plaint in a suit for perpetual injunction in a suit titled as Muhammad Yousaf v. Muhammad Hanif, Willayat Khan and Muhammad Ayyub as Exh.D.1, certified copy of written statement in the suit filed by the then petitioner/defendant as Exh.D.2. After hearing the arguments of the parties learned trial Court decided the Issue Nos. 5 and 6 in favour of respondent/ plaintiff whereas findings of issues Nos. 1 to 4 were also decided against the petitioner/ defendant and resultantly consolidated judgment and decree dated 30-4-2007 was passed against them. The petitioners/ defendants have assailed the consolidated judgment and decree by filing separate appeal. Learned appellate Court dismissed all the ten appeals through a single judgment dated 18-12-2008. The learned appellate Court in Para No,8 of the impugned judgment directed that copy of consolidated judgment and decree be placed on each concerned file. The petitioners have filed 10 revision petitions against the impugned judgment but office raised .Objections that certified copies of judgment, written statement and evidence and other annexures have not been annexed with each revision petition; that office objection over ruled by this Court on 18-12-2009 and ordered that other revision petitions will be heard along with Civil Revision No,76-D of 2009.
6. Learned counsel for the petitioners has contended that verbal version of the respondent has taken as gospel truth and at the same time even documentary evidence adduced by the petitioners have been brushed aside. Non-reading, non-consideration on the part of both the Courts below is apparent from the judgment of Court below, they have ignored the copy of suit Exh.D.1 and Exh.D.2 written statement submitted by the petitioners; that self-destructive deposition of respondent was required to be assessed and evaluated in each of the case as each of the case was filed regarding alleged unpaid price of one buffalo. In his deposition the respondent has given different and distinct numbers of buffaloes i.e, fifteen buffaloes and somewhere ten and four buffaloes; that modus uperandi adopted by the trial Court qua consolidation of ten suits in the facts and circumstances of the case, is illegal and concurring with the same by the appellate Court is not maintainable; that learned Courts below should have provided opportunity to examine and cross examine the witnesses in each case separately; that recording of evidence is one case and while passing the judgment and decree on the basis of same has resulted in grave prejudice to the petitioners; that placing the reliance in all ten cases and passing the consolidated judgments and decrees is violative and is against principle of natural justice and guideline given by the superior Courts. Learned counsel for the petitioner places reliance on case of Malik Aman v. Haji Muhammad Tufail PLD 1976 Lah. 1446, Muhammad Younas v. The Crown PLD 1953 Lah. 321 and Sabir and 2 others v. Ghulam Fatima 1987 CLC 1407.
7. Learned counsel for the respondent/plaintiff has argued that although recovery amount was different but parties were same, transaction was taken place within the span of two months and both the Courts below consolidated 10 suits in order to avoid any divergent decisions and for the convenience of the parties as well as to the Court. Both the parties adduce their evidence on the basis of consolidated issues hence no prejudice has been caused to the petitioners. The suits were consolidated on the request of the petitioners/defendants and they have not raised any objection in this regard before the trial Court.
8. I have heard the arguments and perused the record.
9. Controversy involved in the present case is whether different suits on different causes of action basing on different transactions taken place on different dates can be joined in through consolidation of suit and framing of consolidated issues in one suit? And whether the evidence recorded in one case i.e, suit No,135 of 2006 titled Kaalay Khan and others v. Wahid Khan can be considered to be part of the other suits even without placing the same on the file of the other case?
In order to understand the controversy in the present case it will be appropriate to reproduce the Order II. Rule, 3 C.P.C., which is as under:--- "Order II rule 3, C.P.C. Joinder of causes of action. ---Save as otherwise provided, a plaintiff may unite in the same suit several causes of action against the same defendant, or the same defendants jointly; and any plaintiffs having causes of action in which they are jointly interested against the same defendant or the same defendants jointly may unite such causes of action in the same suit."
It is settled principle of law ,that evidence of the parties is recorded in each case and same cannot be considered to be recorded of other case. The purpose of consolidation is to avoid multiplicity of litigation, to eliminate award of contradictory judgments and to prevent the B abuse of the process of the Court. These purposes are merely illustrative and not exhaustive of the powers of the Court.
There may be other variety of grounds that in the interest of justice the Court may be persuaded to consolidate the cases. In present case although the amount of recovery was different in each suit, time, date, place and transaction of sale consideration were different but parties were same and subject matter i.e, buffaloes were almost same, evidence was also same. Learned Court below has rightly framed the consolidated issues in order to avoid the multiplicity. It is very astonishing that petitioner/defendants have neither raised any objection at the time when suits were consolidated on 17-6-2000 or when the consolidated issues were framed or when plaintiffs have produced evidence or himself appeared in witness box regarding the consolidated issues. Hence they have no right to raise this objection at the appellate stage. It is well settled law that any legal or factual objection had to be taken at the first instance. If the parties failed to raise C objection they cannot be permitted to raise the same at the appellate level or in a revisional Court. Consolidation of suit at the best is akin to misjoinder causes of action. It is clear from the provision of Order II Rule 3 C.P.C. Which postulate that the entire objections as to misjoinder shall be taken at the earliest possible opportunity. Objection not taken shall be deemed to have been waived.
10. The petitioner has never raised a little finger as the consolidation of the suits by the trial Court.
Even otherwise the procedure adopted by the Court below would be fully covered under section 99 of C.P.C. Which is re produced:--- "No decree to be reversed or modified for error or irregularity not affecting merits or jurisdiction. No decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any misjoinder of parties or causes or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the court. "
2. It is admitted on the record that petitioners never objected or raised eyen a single finger qua the consolidation of the suit rather it was on their asking trial Court has framed the consolidated issues; when the suits were consolidated, plaintiff/ respondent's evidence was cross-examined by the petitioners. Petitioners Nos. 1 and 3 themselves appeared as D.W.2 and D.W.l, respectively. They have never raised such objection before the trial Court. This conduct disentitled the petitioners to raise this plea at belated stage. As it would be deemed to have been waived, I am fortified by view taken in the judgments of Privy Council and apex Court of this country reproduced in the case of Mahant Ramdhan Puri and others v. Chaudhury Lachmi Narain and others AIR 1937 Privy Council 42 and Muhammad Yaqoob v. Behram Khan 2006 SCMR 1262, wherein it was held as under:- "rationale behind sections 10 and 11, C.P.C, seems to be based on the principle that multiplicity of litigation should be avoided and no one should be troubled twice for the same cause"
'The purpose of consolidation is to avoid multiplicity of litigation to eliminate award of contradictory judgments and to prevent the abuse of the process of the Court. These purposes are merely illustrative and not exhaustive of the powers of the Court. There may be other variety of grounds that in the interest of justice the Court may be persuaded to consolidate the cases.
Reference can be made to the case of Alam Khan and others v. Pir Ghulain Nabi Shah and Company 1992 SCMR 2375, in which it has been held as under:- "Under Order II, Rule 3, C.P.C, that a plaintiff can unite in the same suit several causes of action against the same defendant. Needless to mention that in a suit for pre-emption the pre-emptor and the vendee are the only necessary parties and as such the plaintiff/ pre-emptor could join against the vendee/defendant several causes of action. The impugned transactions though on behalf of different persons and finalized through two different mutations were sanctioned on the same date. The plaintiff/appellants rightly joined the two sale transactions in a single suit because if he had filed separate suits, even then they had to be consolidated as common question of law and fact regarding right of pre-emption of parties and determination of market value would have been involved. As such the joining of two transactions in one suit was more proper and convenient than filing separate suits."
12. Thus in view of above discussion I am of the considered opinion that learned trial Court has rightly consolidated the ten suits of the respondent for its own as well as for the convenience of the parties and in order to avoid contradictory judgment or multiplicity of the litigation. Hence the mode adopted by the Court in recording and using the evidence is correct. The petitioners/defendants are estopped by their conduct to raise objection subsequently. Reliance is placed on Islam Din and 7 others v. Naseer-ud-Din 1995 SCMR 906, Syed Alam Hussain and other v.
Syeda Shamim Akhtar and others PLD 1974 SC I0O, Muhammad Eisa and 6 others v. Khair-ud-Din 1991 SCMR 1942 and Iqbal Muhammad Khan v. Abdul Haq Ch. 1983 SCMR 567.P.W.1 Muhammad Ashraf deposed that in his presence 10 buffaloes were purchased by the petitioners/defendants from Willayat Khan on credit but he failed to point out value of each buffalo. The plaintiff Willayat Khan deposed as P.W.3 that ten buffaloes were purchased by the defendant from him on credit with different intervals such as 15 days, 20 days, one month or two months. He disclosed the value of each buffalo, which was purchased by the defendant on credit from him. The certified copy of written statement Exh.D.2 was not confronted by the petitioners/ defendants to the plaintiff in his cross examination as P.W.3, therefore, both the Courts below have rightly not read the same against respondent. Both the Courts below have rightly decided the issues Nos.5 and 6 in favour of the plaintiff/respondent by properly appreciating the evidence available on record. There is no justification and reason to interfere into the findings of fact recorded by the Courts below. In this view of the matter I do not find any illegality or infirmity in the impugned judgment passed by the Courts below. There is no misreading or non- reading or any illegality in the impugned judgments passed by the learned Courts below.
13. Resultantly this civil revision is hereby dismissed. Parties are left to bear their own costs.