' SARDAR SAID MUHAMMAD KHAN, C.J.---This apeal has been directed against the order of the High Court dated 9-5-1992, whereby the High Court ordered the trial of the suits after consolidating the same together.
2. The brief facts of the case are that two suits, one by respondent, Muhammad Younis, regarding Survey No, 88 measuring 13 Kanals 9-1/2 Marlas and other by the appellants pertaining to Survey No, 57 measuring 21 Kanals and 11 Marlas, were instituted in the Court of Sub-Judge, Muzaffarabad.
Both the suits were processed independently and evidence was also recorded separately till 21-11- 1983, when the last and final opportunity was given to the respondent for producing his evidence.
The evidence of the respondent was closed on 21-11-1983. Subsequently it came to the notice of the Court that Dullah, a party to the suits had died. An application for the impleadment of the legal representatives of Dullah was made by the respondent wherein it was categorically stated that Dullah died on 19-5-1985. The impleadment of the legal representatives of Dullah was objected to by the appellants and the case was fixed for arguments on the point as to whether the legal representatives in the case entitled Muhammad Younis v. Sattar Muhammad and others can be impleaded as a party. On 28-9-1991, the respondent moved two applications : one for condonation of delay and other for consolidation of both the suits. Both the applications were rejected by the trial Court and the case was fixed for arguments on the original application for the impleadment of the legal representatives of Dullah. The respondent assailed the order of the trial Court, whereby the application for consolidation of the suits was rejected, by way of revision to the High Court. The learned Single Judge in the High Court set aside the order of the trial Court and ordered the consolidation of the suits. The learned Judge expressed the view that the non-impleadment of legal representatives of Dullah will not be affected by the consolidation of the suits because that matter would be decided by the trial Court on merits.
3. We have heard the arguments and perused the record. It has been argued by Mr. Muhammad Farid Khan, Advocate, the learned counsel for the appellants, that the High Court has committed error in ordering the consolidation of the suits because that cannot be regarded as being convenient to the parties. He has maintained that as the respondent did not implead the legal representatives of Dullah, deceased, within the period of limitation, he submitted the application for consolidation of the suits with an ulterior motive. The learned counsel has further maintained that the purpose of consolidation is to avoid multiplicity of the proceedings, conflicting judgments and the inconvenience of the parties but none of these purposes is served by consolidation. The learned counsel has argued that in the instant case the statements of many witnesses have been recorded in both the suits separately and the evidence recorded in one suit cannot be read in the other suit. He maintained that the consolidation will result in inconvenience to the parties rather than convenience. The learned counsel has submitted that the apprehension about conflicting judgments can be removed by ordering the disposal of suits simultaneously after recording evidence in each of the files separately.
4. In reply the learned counsel for the respondent, Ch. Muhammad Ibrahim Zia, Advocate, has argued that consolidation of the suits is necessary to avoid conflicting judgments and that the same can be ordered at any stage. He has argued that the evidence recorded before consolidation separately can be read into evidence if the parties to the proceedings so consent. He has further maintained that during the proceedings, the trial Court has recorded at one stage that consolidation of the suits is necessary. He has maintained that although there is no specific order of the consolidation but the suits would be deemed to have been consolidated because the necessity of consolidation was "in the mind of the trial Court". The learned counsel has cited following authorities in support of his contention:--
5. In Harinarain Choudhary v. Ram Asish Singh (AIR 1957 Pat. 124), it was observed that in deciding whether two or more suits should be consolidated or not, the whole question is whether or not, in the long run, it would be expeditious and advantageous to all concerned. If it is so then the Court can order the consolidation of the suits under its inherent poweRs, It was further observed that if the parties to the suit agree the evidence recorded in different suits before consolidation can be read but if not so, then the evidence has to be recorded freshly.
6. In Muhammad Siddiq v. Mst. Zahida Begum (1986 CLC 2963), it was observed that where common subject of claim in dispute is involved, the suits can be consolidated for avoiding the contradictory findings.
7. In Mst. Hafizan v. Muhammad Yasin (1985 CLC 1448), it was observed that where the common questions of law and fact are involved the Court has powers to consolidate the suits under inherent poweRs, _8. In Pakistan v. Messrs Agromarketing Corporation Ltd. (1981 CLC 443), it was observed that the Court has power to consolidate the suits under section 151, C.P.C., but it should be only done if the consolidation is in the interest of justice and for the convenience of the parties. It was observed that as one of the suits was at initial stage while the other was complete for arguments, the prayer of the consolidation was not conducive to the interest of the parties. Thus, it was ordered that the proceedings in the subsequent suit should be expedited and the suits should be decided simultaneously after hearing the arguments.
9. In Gangaprashad v. Mt. Banaspati (AIR 1937 Nagpur 132), the question before the Court was as to whether only one appeal should he filed in case of consolidation of the suits. It was observed that consolidation is exception and not the rule and the Courts should be slow to presume its existence when there is no express order to this effect, because the Code does not allow consolidation in express terms. It was further opined that it depends on the circumstances of each case to ascertain as to whether the Court consolidated the suits or not.
10. We have given our due consideration to the arguments raised at Bar. There is no quarrel with the proposition that if the interest of justice so demands, particularly in the context of the convenience of the parties, the Court may order the consolidation of the suits. In the instant case the suits have been separately tried and the statements of a number of the witnesses have been recorded in both the suits. Although the trial Court has recorded at one stage that consolidation was necessary; yet all the same the suits were not consolidated and the proceedings continued separately. The statements of many witnesses have been recorded in both suits separately. The learned counsel for the appellants does not agree that the evidence recorded separately should be read in both the suits jointly rather his case is that the suits cannot he consolidated at its belated stage.
11. In view of the proceedings taken so far in the suits separately, it cannot be said by any stretch of imagination that consolidation of the suits would serve the ends of justice or put the parties at more convenience; rather in case of consolidation the evidence has to be recorded afresh and that will result in further delay in the disposal of the suits which are sub judice since the years 1978 and 1980. Thus, we are of the opinion that the view taken in Pakistan v. Messrs Agromarketing Corporation Ltd. (1981 CLC 443), referred to above, if followed in the instant case would serve the ends of justice. The order of the consolidation passed by the High Court in the circumstances of the case was not justified at all. Therefore, we set aside the impugned judgment and decree of the High Court so far as the same relate to the consolidation of the suits and order that the proceedings in both the suits shall he completed expeditiously and the same shall he disposed of simultaneously after their completion. Needless to say the question of abatement of one of the suits would he decided by the trial Court on merits and if it is found that the said suit did not abate, it is only then that the question of the disposal of the suits at the same time would arise.
12. The appeal stands accepted as indicated above.