MUHAMMAD IJAZ KHAN, J.- Through this writ petition, petitioners have challenged the order and judgment of the worthy Member-I, Board of Revenue, Peshawar dated 06.02.2019, whereby the order and judgment of the learned Additional Commissioner Mardan Division, Mardan dated 30.10.2018 was maintained who vide the same had set aside the order of the learned Deputy Commissioner/District Collector Mardan dated 21.03.2018 and order of learned Tehsildar, Takht Bhai, Mardan dated 09.08.2017 and remanded the case back to the learned trial Court with the direction to consolidate both the partition petitions.
2. Precisely, the facts of the case are that the present petitioners, namely Amir Muhammad and others, filed a partition application with respect to Khasra numbers situated in Khata No. 302. When the respondents were summoned, they submitted an application for the summary rejection of the petition on the ground of being partial partition, however, during this period, the respondent also submitted an application for consolidation of the instant partition application alongwith another partition application, which was pending adjudication with respect to Khatajaat No. 299, 300 and 301 on the ground that since in the instant partition petition with respect to Khata No.302 and in the other one with respect to Khatajaat No. 299, 300 and 301, both the parties are co-sharers, therefore, for a complete and effective partition both the partition applications need to be consolidated. The aforesaid partition application was duly contested by the petitioners/applicants, however, the said application was dismissed by the learned Tehsildar, Takht Bhai, Mardan vide order dated 09.08.2017 and allowed the partition application, which order was then challenged by the respondents before the learned Deputy Commissioner/District Collector, Mardan through an appeal, however, the appeal was also dismissed vide order dated 21.03.2018. Thereafter, the respondents approached to the learned Additional Commissioner Mardan Division, Mardan by filing a revision petition, which was allowed vide one of the impugned order dated 30.10.2018, whereby the order of learned Deputy Commissioner/District Collector Mardan dated 21.03.2018 and that of the order of the learned Tehsildar, Takht Bhai, Mardan dated 09.08.2017 were set aside and the case was remanded to the learned trial Court with the direction to consolidate both the partition petitions. Feeling themselves aggrieved of the aforesaid order, the petitioners filed a revision petition before the worthy Member- 1, Board of Revenue, Peshawar, however, the same was also dismissed vide second impugned order dated 06.02.2019, hence this petition.
3. Arguments heard and record perused.
4. The record would show that it is the case of the petitioners that since petitioners are only co- owner in Khata No. 302 and they are not co-owner in Khatajaat No. 299, 300 and 301, therefore, the two partition applications have wrongly been consolidated, however, during the course of arguments, it transpires that the present petitioners had allegedly sold their shares in the other Khatajaat No. 299, 300 and 301 to other persons who have also impleaded themselves as party in this case, therefore, in the given facts and circumstances the vendee(s) of the present petition will step into the shoes of the present petitioners being their vendor, therefore, while determining the shares of the present petitioners and that of the respondents consolidation of both the suits would meet the end of justice or otherwise the same would lead to unending litigations between the parties which is the main spirit and object behind the consolidation of legal proceedings so as to determine the rights of each stakeholder once for all. Even otherwise, when the present petitioners and respondents are co-sharers or they were co-sharers and when the present petitioners have allegedly sold some property in the remaining Khatajaat, then for the safe administration of justice, the consolidation of suits is a proper course and it by no stretch of imagination or presumptions or inferences would cause any prejudice to the case of present petitioners. The impugned order of the learned Additional Commissioner was gone through in the open Court and the reasons which were prevailed with the worthy Additional Commissioner are exactly in line with the spirit of the law and as such the Additional Commissioner Mardan as well as worthy Member Board of Revenue have correctly exercised their jurisdiction and thus their judgments are not the result of any improper or illegal exercise of jurisdiction vested in them.
5. It would also not be out of place to mention here that a recent jurisprudence which has developed in the sub-continent, especially in Pakistan and India, there is judicial consensus that consolidation of suits/petitions is a judicial tool to promote procedural and judicial economy, ensure consistency in judgments and prevent the abuse of process of the Court. There is also judicial consensus that consolidation is not merely permissible but often necessary, especially when multiple proceedings involve common parties, overlapping issues, or share subject matter.
Courts are not only empowered but they must encourage to exercise their discretion in the interest of justice, even if the parties are not agree for the same, as such consolidation would foster judicial efficiency and avoid conflicting judgments and uphold the integrity of the judicial process. In case[1] the Apex Court has held that it is a 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 proceeding 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 a 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 condition precedent for exercise of such powers. 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. Similarly, in case[2] the Hon'ble Supreme Court has held that, "Whether in the suits which are consolidated the trial court is obliged to pass separate decrees in each of the suits or a single decree shall be sufficient pursuant to a common judgment disposing of such suits? It is settled law that it is the inherent power of the court to consolidate suits and the purpose behind it is to avoid multiplicity of litigation and to prevent abuse of the process of law and court and to avoid conflicting judgments. No hard and fast rule forming the basis of consolidation can be definitive and it depends upon the facts and the points of law involved in each and every case, obviously where the court is persuaded that the interests of justice so demand, consolidation can be ordered". In case[3] the Hon'ble Apex Court has also held that, "We have given our due consideration to the contention of petitioner and perused the record.
It is a 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. 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 a 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 condition precedent for exercise of such powers. 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".
6. It may also be noted that the petitioners through the instant petition have prayed for the issuance of a writ of certiorari to declare the orders of worthy Additional Commissioner Mardan and that of worthy Member Board of Revenue as illegal and unlawful, however, the learned counsel representing the petitioners could not point out any excess of jurisdiction or improper or unreasonable or illegal exercise of jurisdiction vested in them, therefore, same are maintained. In the case[4] the Apex Court held that it is plain that certiorari does not lie in order to bring up an Order or decision for re-hearing of the issue raised in the proceedings. It exists to correct error of law where revealed on the face of an Order or decision or irregularity, or absence of, or excess of jurisdiction where shown. The control is exercised by removing an Order or decision, and then by quashing it. Similarly, in case[5] the august Supreme Court observed that it is by now a settled principle of law that the High Courts must not exercise their constitutional jurisdiction in order to interfere with the discretion exercised by lower courts unless the same suffers from jurisdictional, factual or legal errors. In other words, such interference would be justified in cases where the impugned order has been passed without jurisdiction or is based on misreading or non-reading of evidence, or is not in accordance with the law. If none of these errors is present, the High Courts must not exercise their constitutional jurisdiction to interfere with the findings of lower courts merely because it reached a different conclusion as to the controversy than the latter. Likewise, in case[6] the Hon'ble Supreme Court held that where the Court or the Tribunal has jurisdiction and it determines specific question of fact or even of law, unless patent legal defect or material irregularity is pointed out, such determination cannot ordinarily be interfered with by the High Court while exercising jurisdiction under Article 199 of the Constitution. The Apex Court, in case[7] also held that the powers of judicial review vested in High Court under Article 199 of the Constitution is no doubt a great weapon in the Judge's hands however, the same shall not be exercised in a case where discretion is exercised by the subordinate court/ Tribunal in a fair and just manner without violating or disregarding statutory provision of law, likely to occasion the failure of justice. Ordinarily such extraordinary jurisdiction shall not be exercised at random and in routine manner.
7. The crux of the foregoing discussions is that the learned Courts below have not committed any illegality or irregularity while passing the impugned orders, therefore, same are maintained and upheld. Consequently, this writ petition, being bereft of any merit, is hereby dismissed.
1. "Atif Mehmood Kivani and another vs. Messrs Sukh Chavn Private Limited, Royal Plaza, Blue Area, Islamabad and another" reported as 2021 SCMR 1446
2. "Zahid Zaman Khan and others vs. Khan Afsar and others" reported as PLD 2016 Supreme Court 409
3. 'Muhammad Yacloob vs. Behram Khan" reported as 2006 SCMR 1262
4. Muhammad Azim Khan Afridi vs. The President of Pakistan through Principal Secretary and others'. reported as 2023 SCMR 68
5. "Amjad Khan vs. Muhammad Irshad (deceased) through LRs" reported as 2020 SCMR 2155
6. Chief Executive MEPCO and other vs. Muhammad Fazil and others" reported as 2019 SCMR 929
7. "Chairman, NAB vs. Muhammad Usman and others" reported as PLD 2018 S.C 29