VICTORY PRESS Vs. PAUL

JUDGEMENT

(1.) The petitioners in the first of these petitions seek consolidation of two suits under O.45 R.4 of the Code of Civil Procedure for the purpose of appeal to the Supreme Court. The petitioners filed a suit against the respondent; and the respondent filed a suit against the petitioners too. The suits were in the nature of suit and cross suit. The pecuniary valuation of each of the suits was below Rs. 20,000. The Trial Court decreed the suit of the petitioner and dismissed the suit of the respondent, while, on appeal, we dismissed the suit of the petitioners and decreed the suit of the respondent. We have stated in our judgment that, if the contention of the respondent that there was a partnership between him on the one side and the petitioners on the other was believed, then the case of the petitioners of an oral loan should be false, arid that, if the case of oral loan put forward by the petitioners was believed, then the case of partnership put forward by the respondent had to be disbelieved, In other words, if the first suit was decreed, the other suit had to be dismissed, and if the second suit was decreed, the first suit had to be dismissed.

(2.) Two or three decisions have been brought to our notice as to what should be the considerations when suits were consolidated under O.45 R.4 of the Code and when the question of appeal is considered under S.110 of the Code. We feel that, in a case like this, where the suits are in the nature of suit and cross suit where there is no possibility of both the claims being allowed, consolidation of the suits may not be allowed. The purpose of consolidation the intention of the legislature in enacting O.45 R.4 to consolidate suits is to allow an appeal in cases where, though the valuation in one suit is not sufficient for appeal, the total of the valuations of two or more suits goes beyond the minimum fixed for appeal. We are aware of the rule, that, in cases of appeal, it is the spirit of the law that should be looked into and not the letter of the law (vide the Full Bench decision in Molugu Lakshminarasimhacharyulu v. Marisetti Ratnam: AIR 1949 Mad. 739 ). Considering the spirit of O.45 R.4, we feel that, if we allow consolidation in these cases, it will go against the spirit of the provision. As we have already indicated, both the suits cannot be decreed; only one of the suits can be decreed. In other words, the suits are in the nature of suit and cross suit. We may also observe, as Leach C. J. has observed in C. R. Balanagayya Chetti v. Chetti Varadarajulu Chetti AIR 1939 Mad.3 734 ), the provision in O.45 R.4 is not that the suits shall be consolidated but only that the suits may be consolidated. The court is not bound to consolidate the suits, nor are the petitioners entitled, as of right, to have consolidation of the suits. In the circumstances of these cases, we feel that it will be against the spirit of the law if we allow consolidation; and therefore, we are not inclined to order consolidation.

(3.) Otherwise, these are not cases fit for appeal to the Supreme Court. Therefore, the second and third petitions, which are petitions for leave to appeal, are also dismissed.