P L D 2021 Balochistan 59
Before Muhammad Kamran Khan Mulakhail and Rozi Khan Barrech, JJ
ABDUL HAMEED KHAN and 6 others ---Petitioners
Versus
NASRULLAH and others ---Respondents
C. P. No. 1146 of 2019, decided on 26th October, 2020.
(a) Civil Procedure Code (V of 1908) ---
----S. 151---Inherent powers of Court ---Scope ---Consolidation of suits was prerogative,
which was to be exercised on the dictate of the justice to avoid contradictory judgments and
for better administration of justice ---Though no provision for consolidation of civil suits was
provided in the Civil Procedure Code, 1908 but the Court could consolidate different suits to avoid conflict of judgments if the parties in the suits were the same and the cause of action was common ---Parties, in the present case, had filed separate suits against each other before
the Trial Court about the same property--- Admittedly, subject- matter of the two suits, was
the same and if the suits would have been adjudicated separately there was likelihood of
conflicting judgments subject matter of the suits being the same it was proper in the interest of justice that they (suits) be consolidated--- Despite the fact that the two suits were at
different stages of adjudication, they should be heard together ---No illegality or infirmity
was found in the impugned orders and the judgments passed by both the Courts below ---
Constitutional petition was dismissed, in circumstances.
Zahid Zaman Khan v. Khan Afsar PLD 2016 SC 409 and Muhammad Yaqoob v.
Behram Khan 2006 S CMR 1262 ref.
(b) Administration of justice ---
----Consolidation of the suits ---Consolidation of suits was to be ordered to avoid
contradictory judgments and for better administration of justice.
Muhammad Din Kakar for Petitioners.
Muhammad Ali for Respondent No.5.
Date of hearing: 15th October, 2020.
ORDER
ROZI KHAN BARRECH, J. ---The petitioners have invoked the Constitutional
jurisdiction of this Court under Article 199 of the Constitution of the Islamic Republic of
Pakistan, 1973 with the following prayer: -
"It is, therefore, respectfully prayed that in view of above submissions , this Hon'ble
Court may kindly be pleased to set aside the impugned order dated 31.08.2019 passed
by the learned Civil Judge/Judicial Magistrate, Kuchlak as well as order dated 15.10.2019 passed by learned Additional Sessions Judge -IV, Quetta, and dismiss the
application for consolidation of suits filed by the respondents Nos.1 to 4, in the interest of justice, equity and fairplay".
2. Facts of the case are that the petitioners/plaintiffs filed a suit for declaration,
possession, mandatory and permanent injunction against the respondents/defendants before the learned Civil Judge/Judicial Magistrate, Kuchlak (hereinafter "the trial court") with the following manners: -
"A) To declare that the plaintiffs are owners of the property situated at Mahal Khushkaba Kuchlak, Khasra No.1226, measuring 4 Rods, 22 poles and the rights of the plaintiffs
over the property in question are protected under the law.
B) To further declare that the defendants Nos. 1 to 4 have no title, concern with the property in question and the act of defendants Nos.1 to 4 regarding interference/encroachment in the property in question and dispossessing the plaintiffs from the same is highly illegal and irregular under the law..
C) To declare that the defendants are not entitled to occupy the p roperties of plaintiffs
which are in the possession.
D) By means of injunction the defendants Nos.1 to 4 may also be restrained not to
interfere or construct any illegal work on the property in question and also direct the defendants Nos.1 to 4 to remove K acha boundary wall and material from the property
in question and handover the possession of property to plaintiffs with the help of revenue demarcation.
E) Defendant No.4 be directed to remove their gas pipelines illegally installed over property in quest ion.
F) Concerned administrative authorities be directed to initiate proceedings against the defendants Nos.1 to 4 or their companions required so.
G) Any other relief which this Hon'ble Court deems fit and proper may also be extended in favour of plaintif fs in the interest of justice, equity and fair play".
Cost of the suit may also be awarded". "
3. The private respondents resisted the suit, being the defendants. While submitting their
written statements, they controverted the assertions contained in the plaint.
4. Another suit was also filed by the respondent No.5 (Muhammad Naeem) for
declaration and permanent injunction against the respondents Nos.1 to 4 and petitioner before the court.
5. The petitioner resisted the suit, being the defe ndants. While submitting their written
statements, they controverted the assertions contained in the plaint.
6. After framing of issues, the learned trial court directed the parties to produce their
respective evidence. Meanwhile, the respondents Nos.1 to 4 have filed an application under
section 151, C.P.C. for consolidation of both the suits before the learned trial court. While the petitioners, as well as the respondent No.5 contested the application by way of filing their rejoinder.
7. After hearing arg uments, the learned trial court accepted the application vide
impugned order dated 31.08.2019 and considered both the suits.
8. Being aggrieved from the order dated 31.08.2019 passed by the learned trial court, the
petitioners filed Civil Revision Petition under section 115, C.P.C. before the learned
Additional District Judge -IV, Quetta, which was dismissed on 15.10.2019 whereafter the
instant constitution petition has been filed.
9. We have heard learned counsel for the parties and have gone through the available
record with their available assistance.
10. It may be observed that in the Code of Civil Procedure Code, 1908, no provision for
consolidation of a civil suit is provided but the court may consolidate different suits to avoid conflict of judgments provided the parties in the suits are the same, and the cause of action is common. In the present case, the petitioner filed suit for declaration, a permanent injunction in respect of property bearing Khasra Nos.1226/ 1795/1723/1229. On the other hand, the respondents also filed a separate suit for declaration, possession and mandatory/permanent
injunction before the learned trial court about the same property. It is an admitted position that subject matter of the two suits is the same, and the two suits are adjudicated separately.
There is the likelihood of conflict of judgment since the matter of the two suits is the same, therefore, in the interest of justice, it is proper that they may be consolidated and heard together. Despite the fact that they are at a different stage of adjudication. In so far as the consolidation of suits is concerned the same is the prerogative which is to be exercised on the dictate of the justice. The honourable Supreme Court of Pakistan in a case titled Zahid Zaman Khan v. Khan A fsar (PLD 2016 SC 409) laid down the principles for consolidation of
the suits and it was observed as follows: --
"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 litig ation and to prevent abuse of the
process of law and court and to avoid conflicting judgements. 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, provided no prejudice is caused to any litigant and there is no bar in the way of the courts to consolidate the suits".
11. Similar observation wa s made by the apex Court in a case titled Muhammad Yaqoob
v. Behram Khan (2006 SCMR 1262).
"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 the 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 judgements and to prevent the abuse of the process of the court".
12. The upshot of the above -mentioned dicta of the honourable Supreme Court is that
consolidation of the suits is to be ordered in order to avoid contradictory judgements and for better administration of justice.
In view of the above, no illegality or irregularity has been committed by both the
courts below, as such, the instant writ petition filed by the petitioner is meritless and is hereby dismissed.
MQ/42/Bal. Petition dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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