Nankoo Nathia vs Nagnur Parshwaramma and Others

This is a petition in revision on behalf Defendant No. 1 against the order of the Court (SIC)ow dated 9-6-1951 whereby the Court directed Plaintiff to produce her witnesses and the (SIC)endants to file their list of the defence witnesses.

The revision-petition seeks to attack the order of the lower Court on two grounds: firstly that the trial Court was wrong in holding that the suits had already been consolidated earlier and that therefore the later application of the Indian CPC to the Hyderabad State could not in any way affect the previous consolidation of the suits. Following up this contention it is urged that as a matter of fact there is no order of the Court that the suits were consolidated earlier. It is further urged that having regard to the facts of the case, Section 648, Hyderabad CPC is not applicable and so the suits could not be consolidated.

The second contention is that when the Plaintiff had closed her evidence in November 1950, she could not be allowed to produce her evidence again and in permitting the Plaintiff to produce evidence again the Court had not used its discretion judicially.

On behalf of the other side it is contended that it is not correct to say that the suits were not consolidated before Relying on the proceedings sheet of 21-9-1950, it is stated that on that date the suits were consolidated.

As regards the question whether Section 648 Hyderabad CPC is applicable, the learned Counsel for the Plaintiff very rightly conceded before us that Section 648, Hyderabad CPC was not applicable, but his contention is that the Court has got inherent powers u/s 644, Hyderabad CPC corresponding to Section 151, Indian CPC to consolidate suits. Thus, he urges that there is nothing wrong in the order of the Court below which could be interfered with in revision.

With regard to the question of the evidence of the Plaintiff, it is stated that though the Plaintiff had closed her evidence in November 1950, the Defendant had not started his rebuttal evidence, therefore, the Court allowed the Plaintiff to examine witnesses who were already mentioned in the list. Thus he contends that there is no wrong exercise of discretion. In the result it is contended that the revision petition should be dismissed.

7.In so far as the first contention of the learned advocate for the Petitioner is concerned which, relates to the consolidation of the suits, from a perusal of the proceedings of the lower Court dated 21-9-1950, it is clear that the Court at the instance of the Plaintiff consolidated both the suits. Therefore, it is not correct to say that the Court did not consolidate the suits as a matter of fact.

8.The question that has to be considered is as to whether having regard to the nature of the suits, they could be consolidated together. We went through the plaints in both the cases. In our opinion, having regard to the nature of the suits they could be consolidated The contention is that u/s 648, Hyderabad CPC only cross-suits could be consolidated and as these are not cross-suits, these could not be consolidated. It is true that both these suits are of the Plaintiff herself and these are not cross-suits. So Section 648, Hyderabad CPC would not be applicable. But we do not agree with the contention of the learned advocate that the Court has no inherent power to consolidate the suits of this nature which are not cross-suits. It may be pointed out that every Court whether a Civil Court or otherwise, must therefore, in the absence of express provision for the purpose be deemed to possess inherent powers in its very constitution all such powers as are necessary to do the right and undo the wrong in the course of the administration of justice. Admittedly, excepting Section 648, Hyderabad CPC there is no other specific provision to that effect. In the absence of express provision the Court must be deemed to have inherent power, and in this connection it has the inherent power to determine how its proceedings should be conducted.

In the case of - ''Hukumchand v. Kamal Chand 33 Cal 927 it has been held by Woodroffe and Mukherjee JJ.:

The Court has therefore in many cases where the circumstances require it acted upon an assumption of the possession of the inherent powers, to act ''ex debito justitiae'' and to do that real and substantial justice for the administration for which it alone exists. It has been thus held that when the Code contains no express provision on the matters hereinafter mentioned the Court has inherent power ''ex debito justitiae'' to consolidate; postpone pending the decision of the selected action and...

In - AIR 1947 248 (Nagpur) Grille C.J. and Padhye J. held that there is no specific provision of law in the CPC for consolidation of two suits as is contained in Order 41 of the Rules of Supreme Court requiring one trial and one judgment in consolidated actions. It is under the inherent powers of the Court u/s 151, Indian CPC that the suits are consolidated. The legal effect of the ''de facto'' consolidation is usually achieved by two suits being tried together by the consent of the parties and with the approval of the Court.

11.In - Ganesh Ramchandra Thakur Vs. Gopal Lakshman Thakur, , Broomfield and Macklin JJ. held that:

"If suits are filed simultaneously there is no contravention of the part of the rule which prohibits the Plaintiff from afterwards suing for a relief omitted in a former suit, the two suits should be consolidated and tried together on the same evidence,"

12.In - ''Mohd. Fazal v. Malikumar Mahton AIR 1922 Pat 566 Coutts and Das JJ. held:

"The Court has inherent jurisdiction to consolidate the suits with jurisdiction exercisable without the consent of the parties."

13.Having regard to the consensus of opinion of all Courts that there is the inherent power in a Court to consolidate suits in the ends of justice, we do not find anything wrong in the order of the Court below in consolidating the two suits. Of course, the trial Court had consolidated the suits u/s 648, Hyderabad CPC but in out opinion that order of consolidation would holy good and would be deemed to have been passed u/s 644, Hyderabad CPC corresponding to Section 151, Indian CPC Thus, this contention fails.

14.As regards the other question which relates to the evidence, there is absolutely no force in the argument. It is true that in November 1950, Plaintiff had closed her evidence, but Plaintiff requested the Court that as the Defendant has not started with the defence evidence, she might be permitted to produce those witnesses whose list had already been filed earlier. The Court came to the conclusion that as the Defendants have not started the evidence & they have not filed the list of the defence witnesses, it would be in the ends of justice to allow the Plaintiff to produce her evidence. In exercise of its discretion by the Court below we see no reason to in-(SIC)terfere. We do not regard it as an injudicious discretion. Petition in revision is, therefore, dismissed with costs. Advocate''s fee Rs. 35.