H L MAINI Vs. PUNJAB NATIONAL BANK LTD

JUDGEMENT

(1.) THIS is an application presumably made under section 151 of the Code of Civil Procedure for consolidation of two suits viz: Civil suit No. 88 of 1976 and Civil Suit No. 133 of 1977 which are at present pending in this court. The application has been moved by defendant No. 1 in civil suit No. 88 of 1976 on the ground that the points raised by the plaintiff, H. L. Maini in this suit are common to those raised by him as one of the defendants in the other suit, and that the other suit namely. suit No. 133 of 1977 brought by the Punjab National Bank against Messrs Rasain Engineering Works and others is a more comprehensive suit, which covers a wider range of controversy between the parties, including the limited issue involved in this suit i. e. Civil suit No. 88 of 1976. To this application objections have been filed by the plaintiff, H L. Maini, alone who has resisted the same on the ground that no question of law and facts is common to both the suits and that even if the two suits raise any common question of law and facts, suit No. 88 of 1976 having been instituted earlier, the proceedings in the other suit have got to be stayed u/s 10 of the Code of Civil Procedure. In support of their respective contentions the learned counsel for the parties have relied upon a few authorities as well.

(2.) I have heard the learned counsel for the parties at length, perused the pleadings carefully, and have also gone through the authorities cited at the bar.

(3.) IN P. P. Gupta Vs. East Asiatic Co: Bombay, AIR 1960 Allahabad 184 the only authority referred to by Mr. H .L. Bhagotra, learned counsel for defendant No. 1 the parties to a contract had filed two different suits imputing breach of contract to each other. An application for consolidation of the suits was brought by the party which had filed the later suit on the ground that the matter in controversy, i. e., who committed breach of contract being the same in both the suits, it was desirable that both the suits be tried together by consolidating the same. An objection was taken by the other party which had filed the earlier suit, that Section 10 of the Code of Civil Procedure was a clear bar to the consolidation of the two suits as it took away the jurisdiction of the court to try the later suit, when the matter in issue in both the suits was directly and substantially the same. Agreeing with the view taken by the trial court the High Court held that Section 10 of the code of Civil Procedure laid down only rule of procedure and did not takeaway the jurisdiction of the court to try later suit. It was also held that this rule of procedure could be waved when the matter in dispute between the parties in both the suits was substantially the same and failure to try both the suits would cause inordinate delay in the disposal of the suit filed subsequently. The court further went on to hold that no prejudice could be caused to the plaintiff in the earlier suit by consolidating both the suits. On facts the court found that the earlier suit had been in fact brought with the object of delaying the disposal of the later suit.