' This Revision is directed against the order dated 11-6-1978 passed by the learned Civil Judge, Lahore, whereby he declined to consolidate the two suits, one filed on 23-8-1977 by respondent No. 1 against the petitioner and the President of Pakistan through Ministry of Food and Agriculture, Government of Pakistan, and the other filed by the Government of Pakistan on 14-5-1978 in which the three respondents have been arrayed as defendants.
2. The facts giving rise to this litigation are that in order to boost up the cotton crop during the year 1977, the petitioner through the Ministry of Food and Agriculture. Government of Pakistan took up measures to provide pesticides, to be used for the cotton crop in the Provinces of Punjab and Sind.
In this respect tenders were invited and among others respondent No, 2, quoted his rates through respondent No. 1 their quotation being the lowest was accepted. The material had to be imported from abroad. As per tender inquiry the consignment had to be supplied by 15th of May, 1977, but it appears that before the acceptance of the tender, the matter was negotiated between the parties and it was agreed upon that instead of supply of 390 metric tons of solverix 10-G in finished form, On its importation, the technical material would be passed on to respondent No. 1, who would by 30th June, 1977 supply the solverix 10-G in finished form by formulation thereof in Pakistan. It is the petitioner's case that as the time for using the pesticides for the cotton crop was approaching nearer the petitioner at the request of respondent No. 1, airlifted the consignment from Switzerland to Pakistan and paid Rs, 2,86,52,918.27 in foreign currency, toward airfreight charges. It was in these circumstances that Contract No, FDAS-1940/PROC-P/74, dated 10-4-1977, was signed between the parties. On the basis of the authorisation from respondent No, 2, the contract agreement was signed by respondent No. 1 on his behalf.
3. Respondent No, 3 was required to formulate locally 3000 metric tons of granular solverix 10, from the 390 metric tons of imported technical material placed at his disposal by the petitioner within the stipulated period. It is claimed by the petitioner that the time was the essence of the contract. It is admitted by both sides that as against the quantity of 3000 metric tons of granular, solverix 10, respondent No, 3 supplied to the petitioner, only 206.02 metric tons of the material before the emergence of controversy between the parties which led to litigation.
4. It is pleaded by respondent No. 1 that the deal was arranged by them between respondent No, 2 and the petitioner in their capacity as Commission Agent for which they are entitled to a commission of Rs, 6,24,180 at the rate of Rs, 1,600.46 per metric ton. The process of formulation is said to involve complex spraying procedure for impregnating appropriate granular material with the chemical concentrate known as technical material. Respondent No. 1, asserts that as the finished pesticide product is an extremely toxic substance it necessitates special packing and storing. At the instance of the petitioner, the parties conferred between themselves to change the packing, material and as against the original stipulation in the contract agreement, the parties ultimately, agreed to change the specification of the packing material. An amendment dated 2-6- 1976, to this effect was also incorporated in the original contract. The respondents contend that by virtue of this amendment a de novo agreement came into existence and by necessary implications, the original date of delivery i,e,, 30-6-1977, stood abandoned. It has also been pleaded by them that disturbed conditions in the country, as an aftermath of 1977 elections, partook the character of force majeure rendering the contract incapable of performance within the stipulated period. As an accumulative result of these events, according to the respondents, the time ceased to be the essence of contract. In the estimation of the respondents the petitioner by addressing to them letter bearing No, FDAS-1940-Proc.-P-699, dated 22-6-1977 rescinded the contract unilaterally. Respondent No. 1 who according to his showing was willing and ready to perform his part of the contract filed the suit aforesaid for recovery of Rs, 51,86,160 inclusive of interest thereon, as damages incurred by the Respondent and for goods supplied and services rendered to the petitioner. They also claimed bailee's particular lien over the 360 metric tons of solver ix technical material delivered to them by the petitioner for formulation unless payment was made for the services rendered in respect of the bailed goods. Grant of permanent injunction restraining the petitioner from interfering with the respondents' possession over the consignment was also prayed for. They also applied for injunction restraining the petitioner from issuing fresh tender inquiries for formulation of the said pesticides.
5. The petitioner contested the suit and controverting the respondents' contentions took the stand that the change of the packing material neither amounted to novation of the contract nor in any manner affected the date of performance thereof. This variation in the contract was claimed to have been agreed upon by respondent No. 1 before the formulation. It was alleged that up to 4-6- 1977, respondent No. 1 even did not embark upon the initial work. The petitioner also refuted the respondent's plea of non-performance of the contract within the stipulated period on account of force major. It was submitted that the contract was obtained by the respondents on 10-4-1977 and the civil disturbances which had commenced earlier were well within the knowledge of the respondents. The principle of force majeur was, thus, not at all attracted in the case. The letter No, FAD-1940-Proc.-P/699 dated 22-6-1977, was described by the respondents as a reminder aimed at making the respondents conscious of their contractual obligation to perform the contract within the stipulated period. According to the petitioner the time continued to remain essence of the contract and that respondents repudiated the contract by expressing their intention to file a suit even before the expiry of 30-6-1977 by passing a resolution in this behalf.
6. There is another aspect of the matter which is relevant for the purposes of adjudication of this revision. On the request of respondent No, 3, this Court through an administrative order dated 17-6- 1977, directed the learned trial Court to hear their suit day to day and also submit a report to this Court. In pursuance of that direction the hearing of the suit was expedited, the case heard day to day and is now reportedly at the arguments stage.
7. As observed above, it was on 14-5-1978, that the petitioner filed the other suit against the respondents for recovery of Rs, 11,00,01,597.68 as damages for the breach of the contract and on account of loss suffered by the petitioner in the cotton crop of 1577 in the provinces of Punjab and Sind, due to the respondent's failure to supply the pesticides in time. The particulars of the damages and loss have precisely been given in the plaint. This suit is still at the initial stage and the written statement has not so far been filed.
8. Both the suits are pending in the Court of Mr. Abdur Razzak Bhatti, Civil Judge, Lahore. On 22-5- 1978, the petitioner moved an application before the learned trial Court for consolidation of the two suits which was rejected on 11-6-1978. The learned Civil Judge was of the view that as the parties in both the suits are not the same and as respondent No, 2 had not by then put in appearance, the consolidation of the cases could not be ordered without hearing both the parties. He held that in the first suit the issue involved is as to whether the contract was violated by the Government but in the second suit he visualised formulation of different issues. In his opinion, different questions of law and facts are involved in both the suits and as the application was also premature, it could not succeed. However, after giving this firm finding he also made a passing reference to the alternative situation and observed that even if both the suits presented common questions of law and facts between the same parties, the subsequent suit was liable to be stayed under section 10 of the Code of Civil Procedure.
9. In support of this revision petition, learned counsel for the petitioner has submitted that respondent No, 3 is the local agent of the foreign Principal, i,e, respondent No, 2, and that therefore, the parties in both the suits are substantially the same. He argued that the same transaction, namely, the breach of contract, formed core of both the suits, and that there is identity of questions of law and facts in both the suits. The respondent's arguments before the learned trial Court invoking the applicability of section 10 of the C. P. C., was construed by the learned counsel for the petitioner as an implied admission, on their part that similar questions of law and facts were involved in both the suits. He submitted that to eliminate the chances of conflicting judgments, both the suits should have been consolidated by the learned trial Court. It has further been pleaded that in case the respondent's suit is dismissed the petitioner's suit shall automatically stand decreed. Such a situation can only be avoided by consolidating the two suits. In the light of these submissions it has been vehemently argued that by refusing consolidation the learned trial Court committed a material irregularity in exercise of its jurisdiction.
10. Mr. Sarfraz Ahmad Cheema, the learned counsel for respondent No. 1 argued that revisional jurisdiction is available only in given circumstances as laid down in section 115 of the Code of Civil Procedure. Unless it is shown that the case falls within the ambit of section 115, C. P. C., this Court cannot interfere. Referring to the impugned order it was forcefully urged that cogent reasons have been advanced by the learned trial Court for not consolidating the two suits with which no fault can be found. The revision petition, the argument proceeded, is liable to be dismissed on this short ground alone. He cited Shahzada Muhammad Umar Baig v. Sultan Mahmood Khan and another (1), to urge that revisional jurisdiction under section 115, C. P. C. Is primarily meant for correcting errors of the subordinate Courts, made in exercise of their jurisdiction. In the light of this precedent he emphatically argued that as the impugned order does not suffer from any error invocation of revisional jurisdiction by the petitioner is uncalled for.
11. He further argued that there is no specific provision in the Code of Civil Provision for consolidation of the cases and such an order is passed by the Court in exercise of its inherent powers under section 151, C. P. C. This provision cannot be utilised when another provision of the {{FOOT NOTE}}
(1) PLD 1970 SC 139 {{FOOT NOTE}} ' Code is expressly applicable. The submission is, as a specific provision, to meet such a situation, is available in the Code, in the form of section 10, C. P. C. The inherent jurisdiction under section 151, C.
P. C., should not be exercised. Much emphasis has been laid on the argument that as the subsequent suit is hit by section 10 which is a mandatory provision it is, therefore, liable to be stayed. He assented that as consolidation can only be ordered under the inherent powers of the Court, in the face of mandatory provisions of section 10, C. P. C. Such jurisdiction cannot be exercised to defeat the provisions of the Code of Civil Procedure.
12. Mr. Aftab Ahmad Khan, appearing on behalf of respondents Nos. 2 and 3 has adopted the arguments advanced by the learned counsel for respondent No. 1, and further pleaded that the contract in question has two parts. He submitted that the supply of 390 metric tons solverix technical material at the price fixed in Swiss Currency between the parties, on which commission is payable to respondent No. 1, constituted the first part of the contract. The material having been supplied by respondent No, 2 to the petitioner this part of the contract stood duly performed.
Handing over of 390 metric tons of technical material by the petitioner to respondent No. 1 for its formulation into 3000 metric tons of finished form of solverix 10-G comprised the second limb of the contract. He asserted that, in reality: the dispute subsists only between the petitioner and a respondent No. 1, in respect of performance of the second part of the contract. This argument was advanced to strengthen the submissions that the controversy encompassed by the two suits is altogether different rendering consolidation infeasible. He argued that despite the non-fulfilment of all the conditions laid down. In section 10, C. P. C., the interests of justice demand that the petitioner's suit may be stayed under section 151, C. P. C. And sought support for his submissions from Dawarka Das v. Governor-General of India-in-Council etc. (1).
' Grant of any relief to the petitioner in exercise of the revisional jurisdiction was described by him as revising of the previous order of the High Court, whereby the first suit was ordered to be heard day to day. It was also urged that section 115, C. P. C. Is not at all attracted in this case and as it is discretionary jurisdiction and this Court is not bound to interfere, if otherwise substantial justice has been done and cited some precedents, to augment his arguments which need not be referred to.
He contended that as the impugned order is just and proper, this Court need not interfere.
12. I have perused the record and also fully reconsidered the various contention raised by the learned counsel for the parties. There is no specific provision in the Civil Procedure Code for the consolidation of the suits and it is only in exercise of its inherent powers that to secure the ends of justice the Court orders consolidation of the suits. Order XLV, rule 4, C. P. C. Deals only with the consolidation of the salts for the purposes of pecuniary valuation of the appeals to the Supreme Court, if such suits have. Been decided by the same judgment and involves substantially the same questions for determination. In this respect, reference may be made to a Division Bench judgment of the Calcutta High Court in Kali Charon Dat and others v. Shuja Kumar Mondal and others (2) wherein the consolidation of the two suits filed by the petitioners with the one in which they were defendants ordered by the trial Court, was upheld and it was observed that an order for consolidation can be made in a proper case, in exercise of the inherent powers of the Court, recognised by section 151, C. P. C. The Patna High Court in Har Prasad Rai and others Brij Kishan Das and others (3) repelling the argument that the {{FOOT NOTE}}
(1) AIR 1947 Lab. 29 (2) 17 C W N 526
(3) 45 I C 551 {{FOOT NOTE}} ' Order XLV, rule 4, C. P. C. Which permitted consolidation only for the purpose of pecuniary valuation and not for any other purpose, took the view that it was not the purpose of this provision to limit the power of the Court to consolidate cases for the purpose mentioned in that rule alone, and under section 151, C. P. C.. In the interest of justice, permitted the two appeals to be a consolidated merely for the purpose of security of costs and to save unnecessary expenses.
Consolidation of cases in exercise of inherent powers was also maintained by that Court in Kazi.
Syed Muhammad Afzar v. Man Kumar Mahtan (1). In Lal v. Inayat Bibi etc. (2) this Court examined the question of consolidation of suits under the Code of Civil Procedure with reference to the availability of powers to the Family Court to order the consolidation of cases pending before it and observed : "But I do not agree with the learned counsel that the consolidation of suits is done ordinarily by civil Courts under any provision of the Civil Procedure Code specifically so empowering the Court.
Section 151 does not confer any power. It only preserves and keeps intact the inherent powers of the Court to make such orders as may be necessary for the ends of justice or to prevent the abuse of process of the Court, Looked at in this light, if a civil Court consolidates two suits by making reference to section 151, C. P. C. It does so in exercise of its inherent power and not in, exercise of any power specifically conferred by section 151. In reality, while doing so, section 10 of the C. P. Code also comes into play at least indirectly. Instead of staying the proceedings in one suit and permitting the other to continue with possible results of conflict of judgments in respect of the same subject- matter, inherent powers are resorted to."
It is not necessary to discuss other case-law on this subject as it is we settled by a long chain of authorities that the consolidation of the suits cam be ordered by the Court in exercise of its inherent powers. The consent of the parties is not the condition precedent for exercise of such powers. The purpose of consolidation is avoid multiplicity of litigation, to eliminate award of contradictory judgments and to prevent the abuse of the process 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. The view taken by the learned trial Court that the consolidation hinges on the consent of the parties is not well grounded, for exercise of inherent powers of the Court, cannot be circumscribed by the consent of the parties. In Kazi Syed Muhammad Afzar's case the Court was of the opinion that the consent of the parties is not the necessary condition for exercising by a court of the powers of consolidating the suits. The same view finds support from Kali Charan Das's case.
13. While assailing the learned trial Court's refusal to consolidate two suits the learned counsel for the petitioner contributed to the view that the parties in both the suits are substantially the same and that the same questions of law and facts are involved in both the suits. On the other hand, the learned counsel for the respondents though denied the existence of identity of facts and law points in both the suits yet on the basis of section 10, C. P. C. Strenuously advocated the stay of the subsequent suit. It is to be seen that section 10, C. P. C., does not bar the institution of the second suit but the B Court is restrained from proceeding with its trial if both the suits are between the same parties and the same matter is directly and substantially involved {{FOOT NOTE}}
(1) 67 I C 1000 (2) P L A 1975 Lah. 567 {{FOOT NOTE}} ' therein. I feel that irrespective of the contentions of the parties, it is the burden of this Court to apply correct law to the given facts of the case. It is the necessary pre-requisite for the stay of the trial of the petitioner's suit that the whole of the subject-matter in issue in both the suits should be the same, and there is a complete identity of questions of law and facts. The universality of ortry some aspects in the two suits is not sufficient for the application of section 10, C. P. C. In Jamini Kanto Roy Chowdhury and others v. Aswini Kumar Hadar and others (1) it was laid down : "In order to attract the operation of the principle embodied in section 10 ibid it is necessary that the entire subject-matter of the two suits should be the same. Where the subject-matter of the suits concerned is not same, as in the present instance by reason of the periods to which the two suits related being different, that section will not apply merely because the main issue in both the suits is common. Moreover section 10 merely enacts a rule of procedure pure and simple and as such as a decree passed contrary thereto is not a nullity and cannot be challenged or disregarded in execution proceedings."
' This Court also expressed similar view in the case of Muhammad Yaunas v. Nargis Sultana (1). The expression "matter in issue" as used in section 10, C. P. C. Was considered in Gargi Din Misra v. Debi Charan (2) and Hathi Ram v. Hazi Muhammad (3) and was interpreted to mean the entire matter in controversy and not one of the several issues in a case.
14. In a case like the one in hand where two suits are sub judice before the same Court, simultaneous hearing through consolidation is conducive to the administration of justice. Section 10 is procedural in character. Despite the fulfilment of the requirements of section 10, C. P. C. The parties to the suit may not move the Court to stay the subsequent suit. The decree passed in the subsequent suit will not suffer from jurisdictional error. Section 10 does not relate to jurisdiction of the Court.
15. Leaving aside the controversy as to whether or not both the suits are between the same parties, the lack of sameness of the subject-matter of the two suits, itself is enough to impel the operation of section 10, C. P. C. It may be correct that the two suits arise out the same transaction namely Contract No, FADS-1940/PROC-P/74 and each side has accused the other o D the breach of the contract, but even then neither the points involved in both the suits are identical nor the same relief has been claimed. The nature and the items of damages in the two suits are widely apart. The respondent assert novation of the contract on account of change in specification of the packing material, resulting in implied abandonment of the target date of 30-6-1976 as the date of completion of the contract. The post election disturbances in the country have also been characterized as force major by the respondents. The petitioner's suit, however, does not call for adjudication of any such point. Even if Pakistan successfully resists the respondents' suit that will not extend relief to the petitioner in his own suit, as in order to succeed the petitioner may have to prove much more than merely to defeat the respondents' claim. In the cases like present one where the dispute emerges from the same transaction but there is absence of oneness of the issues, the consolidation is not only desirable but it is obligatory for the Court ' to direct consolidation of the two suits. The learned trial Court was thus clearly in error to consider the complete identity of facts and question of law in the two suits as sine qua non for the consolidation. {{FOOT NOTE}}
(1) PLD 1961 Dacca 344 (2) PLD 1970 Lah. 41
(3) AIR 1929 All. 805 (4) AIR 1954 All. 141 {{FOOT NOTE}}
16. It has been noted Above that in the respondents' suit the argument are being heard by the learned trial Court and whereas the suit filed by the petitioner is yet at the initial stage. The consolidation of the two suits ma justifiably be asked for before the commencement of the trial of the suit sought to be got consolidated or where common evidence may have been given in these suits. Obviously, that stage is over and presently none. O these factors is to be found in this case.
The petitioner's prayer for consolidation thus does not appear practicable. The learned counsel for the petitioned when countenanced with this situation, came forward with an alternative prayer, resting on the Relief Clause of the revision petition, that in exercise of the inherent powers under section 151, C. P. C.. The announcement of the judgment of the respondents' suit may be stayed, petitioner's suit ordered to be heard day to day and the Judgments in the two suits announced simultaneously. It was submitted that an act of Court shall not prejudice anyone. He referred to the maxim :- "Actus curia nominem gravabit." and cited National Bank of Pakistan v. Mst. Malka Pukhraj and others (1) and Mian Arshad Ali v.
Government of Pakistan (2). The argument is that the respondents' suit would not have expeditiously reached the argument stage but for the day to day hearing of that suit under the administrative orders of this Court. It is submitted that in the normal routine the trial of the respondents' suit more or less would have proceeded sluggishly and despite the subsequent institution of the petitioner's suit, the gulf between the two suits would not have been so wide to render consolidation impraticable. It was urged that to do complete justice and to avoid contradictory adjudications, simultaneous announcement of judgments may be the only appropriate disposal of the two suits. Learned counsel for the respondents vehemently opposed this argument and contended that such a prayer is unprecedented.
17. It is to be seen that every Court in the absence of prohibition or procedure in the Code of Civil Procedure is to be deemed to be possessed of such inherent powers embeded in its constitution as may be necessary to do complete justice between the parties according to the varying situation which may arise in the course of administration of justice. The C. P. C. Is no designed to embody express provisions to deal with every conceivable issue that may arise in the disposal of cases. The Code is not exhaustive and the inherent powers of the Court are fairly wide to serve the ends of justice. In Abdul Ghafar v. Thal Development Authority (3) this Court expressed the view that when a plaintiff files a suit during pendency of his departmental appeal, the Court under section 151, C. P. C., has the power to stay the suit pending the disposal of the departmental inquiry. Some of the observations made by the Bombay High Court in Ram Bahadur Thakur & Co. v. Davidayal (Sales)
Ltd. (4) are pertinent in construing the inherent powers of the Court under section 151, C. P. C. In that case, the applicant filed a suit at Calcutta. Later on, he was sued at Bombay. He applied to the Bombay Court, under section 10, C. P. C. For stay of the subsequent suit, which was refused. It was under these circumstances that the matter was lifted before the High Court. Although, the requirements of section 10, C. P. C.. Were satisfied yet the Court merely to prevent the abuse of the process of the Court, in exercise of its powers under section 151, C. P. C., declined the applicant's request by holding :- "The provisions of section 10 and section 151 of the Civil Procedure Code must be read together, and if the Court which is asked to stay a {{FOOT NOTE}}
(1) PLD 1975 Lah. 1235 (2) PLD 1975 Lab. 7
(3) PLD 1958 Lah. 169 (4) AIR 1954 Born. 176 {{FOOT NOTE}} ' suit comes to the conclusion that by staying the suit before it, it would perpetrate an abuse of the process of Court, or would enable the other party to obtain a benefit to which in view of his conduct he is not legitimately entitled, then, notwithstanding the provision of section 10 the Court would be justified in refusing to stay the suit before it, even though that suit is a subsequently instituted suit.
Section 10 has no application when a suit is instituted which constituted an abuse of the process of the Court. If a suit is filed in order to forestall a suit which would be filed subsequently in another Court or if a suit is filed which is vexatious of contractual obligation to have the matter adjudicated upon in another Court, such a suit would constitute an abuse of the process of the Court."
' In all such cases the interest of justice is the paramount consideration. The same is the ratio of the Dawarka Doss v. Governor-General of India in Council and others cited by the learned counsel for respondents Nos. 2 and 3 which is evident from the following :- "However in a case not covered by section 10 an order for stay of a subsequently instituted suit may be made under section 151, if the Court considers it necessary to make such an order in the interests of justice and in order to avoid unnecessary harassment to any of the parties."
18. The submission made by the petitioner's learned counsel is not without merit. The consequences of not postponing the adjudication of the respondents' suit are obvious. The conclusiveness of some of the issues in the respondents' suit before the finalization of the petitioner's suit may lead to complications. It will also result in further unnecessary litigation between the parties. Possibility of conflicting judgments cannot also be ruled out. Documentary evidence has been led by both the parties in the previous suit and the controversy largely is begged on the decision of law points. Similarly in the subsequent suit it can be visualized that the evidence primarily will consist of documents and some legal issues shall have to be resolved. In this view of the matter, if the hearing of the subsequent suit is expedited, it will not take long to reach the arguments stage. In the interest of justice it is, therefore, directed that the petitioner's suit shall also be heard day to day. Longer adjournment may be given only when it is inevitable. The learned trial Court may complete the hearing of the arguments in the previous suit but the judgments in both the suits shall be announced simultaneously.
19. In giving this decision I have not in any manner enlarged the scope of section 151 but merely applied it to a new situation which is not covered by any express provision of the Code. Before parting with the case I may also dispel the respondents' other objections regarding the maintainability of this revision petition. The petitioner had invoked the inherent jurisdiction of the Court and refusal to exercise inherent jurisdiction by the learned trial Court is open to scrutiny before this Court under section 115, C. P. C. Similarly, administrative order whereby the respondents' suit is being heard day to day will not be a bar to the maintainability of the revision petition.
20. In view of the above discussion, the impugned order is set aside, the revision petition is accepted and the learned Civil Judge shall proceed in the matter in the light of the observation made above. The parties are left to bear their own costs.