1. ' KHILJI ARIF HUSSAIN, J.---Appellant aggrieved by the order dated 20-2-2008 whereby the learned single Judge instead of staying suit proceedings of Suit No, 562 of 2005 ordered to consolidate both suits i,e, Suit No, 562 of 2005 and 531 of 2004 to proceed the same together with to avoid conflict of opinion and further that suit No, 531 of 2004 will be leading suit, evidence will be recorded in the Suit. Appellant/ Plaintiff in Suit No, 513 of 2004 preferred this appeal.
2. ' Brief facts to decide the listed appeal are that the appellant filed suit No, 531 of 2004 for accounts, perpetual injunction, appointment of receiver and recovery of Rs, Fourteen Million as compensation. It was alleged by the appellant in Memo of Plaint that there was business relationship between him and the respondent under which the respondent was agreed to supply raw materials of poultry feeds stuff to appellant for a period of three years from 1st July, 2002 to 30th June, 2005. The business between the parties was running very smoothly and the respondent had gained full faith and confidence of the appellant. The appellant case was that from November, 2003 to February, 2004 respondent/defendant was required to deliver 28 trucks of rice broken, but he supplied only 14 trucks, 14 trucks of rice polish, but he supplied 8 trucks, trucks of maize but he supplied on 6 trucks, 14 trucks of Juar, but he failed to supply not a single truck. The appellant alleged that against the aforesaid supply respondent/defendant received the excess amount of Rs,18,62,680 and claimed the same. The appellant not only claimed of the said amount but also claimed a sum of Rs,90,00,000 which according to him were held up by the poultry farmers due to loss of their birds and Rs,50,00,000 loss to the business and reputation to him.
3. ' The respondent filed written statement and denied that any amount is due or payable by him. On the contrary it was alleged that a sum of Rs,64,82,461 is outstanding against the appellant in respect of poultry feeds supplied by him of which only a sum of Rs,8,35,000 have been paid.
4. ' Before filing written statement in the Suit, the respondent filed Suit No, 562 of 2005 for recovery of the said amount. In the said suit respondent had prayed for recovery of Rs,64,82,461, with further claim of Rs,50,000 per month with effect from 21-10-2003 to 20-1-2004 and a sum of Rs,15 lacs as damages/compensation.
5. ' The appellant filed application under section 10 of C.P.C. 1908 to stay proceedings of suit filed by the respondent as the matter in Suit No, 562 of 2005 filed by the respondent are directly and substantially in issues in previously instituted Suit No, 531 of 2004 filed by the appellant is same.
6. After hearing the learned counsel for the parties, learned Single Judge disposed of application and ordered to consolidate both suits treating Suit No, 531 of 2004 filed by the appellant is leading Suit.
7. ' Heard Syed Ali Ahmed Tariq Advocate for the appellant. Learned Advocate vehemently argued that the issue in the matter in both suits are substantially the same and between the same parties, therefore, his application under section 10, C.P.C. Was wrongly dismissed by the learned Judge.
8. Learned Advocate argued that appellant's Suit was for rerdition of accounts even if suit was not filed by the respondent. Court after taking account Court can pass a decree against the appellant.
9. In support of his contention learned counsel heavily relied upon the case of Dr. Haider Ali Mithani v.
10. Ishrat Swaleh, PLD 1999 Kar.
11. 81.
12. ' On the other hand Mr. Naveed Ahmed Khan learned Advocate for the respondent argued that relief asked in both suits are different, learned Single Judge rightly passed the order of consolidation.
13. ' We have taken into consideration arguments advanced by the learned Advocates for the parties.
14. From the perusal of the record, it appears that appellant filed suit not only for rendition of accounts but claim a sum of Rs,90,00,000 which according to appellant withheld by the poultry farmers etc. And/or claim also a sum of Rs,15,00,000 due to loss of business as well as reputation.
15. ' On the other hand respondent's case in Suit No, 562 of 2005 was that against feed supplied by him a sum of Rs,64,82,400 is outstanding against the appellant and further appellant is entitled for a sum of Rs,50,000 per months as profit with effect from January, 2004 on it, sum of Rs,15,00,000 as damages/compensation.
16. ' From perusal of memo of plaint of both suits, it appears that though parties are claiming against each other in respect of business transactions of supply of raw material of birds feed but the relief asked for simple decree for account but they were claiming damages, loss of profit, loss of reputation etc. Against each other. The appellant in his suit not only claiming excess amount paid by him but also claim a sum of Rs,19,00,000 withheld by the poultry farmers in respect of loss causes to them, which he could not recover 50,00,000 towards loss of business and reputation.
17. Relief asked by the respondent in his suit in respect of profit of Rs,50,000 per month and damages of Rs,60,00,000 cannot be granted in the suit filed by the appellant and we are of the view that the relief asked for in the suits filed by the parties are not substantial same.
18. ' Whether the suits filed by appellant against the respondent or respondent against the appellant are suits for account or for recovery of dues under same contractual obligation need to be decided by the Court, however, we could like to reproduce a quotation from the case of The Mall, Lahore v.
19. Government of Punjab and 4 others, 1991 SCM R 2324.
20. "It is to be remembered that liability to render accounts is the foundation for maintainability of a suit for rendition of accounts. Such a liability exists when there is fiduciary relationship between the parties as in the case of parties of a firm, guardian and ward, principal and agent, trustee and beneficiary of the trust. These instances are only enumerative and under Order XX, rule 16, C.P.C., The Court is empowered to pass a preliminary decree where it feels necessary that to ascertain the amount due to one party from the other side, the accounts should be taken. But, in the instant case, the relationship between the parties is undoubtedly contractual. In such a case, the respondents are not under any obligation to render accounts to the appellant. The work done, the material supplied to the department and the payments received from them by the appellant were within his knowledge. It was, therefore, for him to have ascertained the amount due to him and filed a money suit for recovery thereof."
21. ' In the case of Muhammad Yaqoob v. Behraim Khan, 2006 SCM R 1262, Honourable Supreme Court held:-- "...It is settled principle of law that where a common subject of claim is in dispute in counter suits, both the suits are consolidated and decided together. This rule is imperative in order to avoid conflicting decisions. The rule was completely ignored by the trial Court as it failed to decide the issue in question and committed error to stay the proceedings of the respondent's suit which was rightly rectified by the learned High Court with cogent reasons in the impugned judgment. It is pertinent to mention here that parties in both the suits are the same and subject-matter/property is the same. It is well-settled by the long chain of authorities that the consolidation of the suits can be ordered by the Court in exercise of its inherent powers. The consent of the parties is not the precedent for exercise of such powers."
22. ' In the case of Karachi Water and Sewerage Board v. Messrs M.A. Majeed Khan and 2 others, 2002 CLC 566, a Division Bench of this Court held:-- "To avoid likelihood of conflict of opinion, discourage multiplicity of proceedings, duplication of trial of same issue between the same set of parties to expedite decision, avoid delay and inconvenience, consolidation or joinder of several actions into one may be ordered by the Court below where it is satisfied that all the causes are:---
(a) Between the same parties.
(b) Before the same Court.
(c) Point in issue, defence are substantially common in all such action.
(d) Common evidence is to be recorded.
(e) Consolidation is applied at the earliest opportunity, before evidence is recorded."
23. 'For the foregoing reasons, listed appeal has no merit and accordingly dismissed in limine. These are the reasons of our short order dated 16-1-2009.