Consolidation of suits; structuring discretion in civil proceedings

Consolidation of suits;

structuring discretion in civil proceedings

           by Sana Azhar[1]

In Pakistan, the procedure relating to civil cases is governed by the Code of Civil Procedure, 1908 (hereinafter “the CPC”). The CPC vests the civil courts with jurisdiction to try all civil suits, except for those in which cognizance by the civil courts is expressly or implied barred.[2] For the purposes of this article, it is presumed that all suits and proceedings referred to have been instituted in the civil court.  The CPC did not, until the recent past, contain a provision that prescribed the manner, mode or circumstances in which a court may (or shall) consolidate two or more suits to be heard and decided together. A court could therefore, in exercise of inherent power vested in it under section 151 of the CPC, exercise its discretion in this regard.

In exercise of its powers under section 122 of the CPC, the Hon’ble Lahore High Court, , through an amendment[3], added Rule 6-A to Order II of the CPC, to be effective within the territorial limits of its jurisdiction; the amendment is reproduced herein below:

“6-A. Consolidation of suits.– Where two or more suits or proceedings of the same nature requiring determination of similar issues between the same parties are pending in relation to the same subject matter, the Court may, if considers it expedient for avoiding multiplicity of litigation or conflict in judgments, direct the consolidation of such suits or proceedings as one trial, whereupon all such suits or proceedings shall be decided on the basis of the consolidated trial.”

As is evident from the language of Order II, Rule 6-A, CPC, it is directory rather than mandatory for a court to consolidate suits. The amended law therefore, codifies the previously existing discretionary parameters when considering the objective to avoid multiplicity of litigation or conflict in judgments, as laid down in precedents of the superior Courts. [4]

[1] Sana Azhar is an Associate at Asma Hamid Associates.

[2] See section 9 of the Code of Civil Procedure, 1908.

[3] Through notification no. 237/Legis/XI-Y-26 dated 15.08.2018.

[4] 2006 SCMR 1252 titled “Muhammad Yaqoob v. Behram Khan”

How have courts decided in the past?

A study of precedents in which courts have exercised discretion whether or not to consolidate suits reveals the following broad parameters:the consolidation of suits may be at the court’s own initiative or upon application of either of the parties, preferably in the earlier stages of the suit.[1]; all objections to consolidation must be taken at the earliest stage, failing which they are deemed to be waived.[2]; it is a discretion vested in the court and has not been held to be mandatory.[3] Historically, the decision whether or not to consolidate suits has been based on equitable principles[4] with expediency and convenience of all the parties being relevant factors.[5] The Hon’ble Supreme Court of Pakistan (hereinafter the “Hon’ble Supreme Court”), in a three member bench judgement reported as PLD 2016 Supreme Court 409 titled Zahid Zaman Khan and others v. Khan Afsar and others” has held that consolidation may only be ordered where the court is persuaded that it is in the interests of justice and therefore should not be ordered where it causes prejudice to any litigant; paragraph 7 of the said judgement is reproduced hereinunder:

“7. With respect to question No. 2; 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 litigation and to prevent abuse of the process of law and court and to avoid conflicting judgments.1 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.” [6]

As a general principle, the courts have ordered consolidation in cases where the subject matter is the same in counter suits.[7] In some cases, it has been held that it is incumbent upon the court to pass an order for consolidation where two or more suits involve the same subject matter

[1] 2006 CLC 1390 titled “Riasat Ali v. Muhammad Yaseen through legal heirs, etc.”

[2] 1994 CLC 1683 titled “Muhammad Rafiq v. Salim Ahmad and others”

[3] 2006 YLR 460 titled “Muhammad Hafeez Khan and another v. Muhammad Azeem”

[4] 2004 SCMR 108 titled “Messrs First Women Bank Ltd v. Registrar, High Court of Sindh, Karachi”

[5] 2006 CLC 1390 titled “Riasat Ali v. Muhammad Yaseen through legal heirs, etc.”

[6] PLD 2016 Supreme Court 409 titled “Zahid Zaman Khan and others v. Khan Afsar and others”

[7] Ibid.

between the same parties.[1] This is because if the suits are not consolidated, separate evidence is required to be led in each case as evidence in one case cannot be considered in another suit for passing judgement.[2] The afore referred reasoning has been provided in the judgement reported as 2010 MLD 1230 titled Abdul Rahim v.  Muhammad Tahir Khan and others at paragraph no. 5 reproduced below for the sake of clarity:

“It is a settled proposition of law that whenever two suits pertain to the same subject-matter between the same parties, then it is incumbent upon the trial Court to make a specific order for consolidation of both the suits and to frame consolidated issues and thereafter record the evidence of the parties in support of their respective allegations. This is also a settled law that in the absence of consolidation, the evidence of the parties has to be separately recorded in both the suits and evidence in one case cannot be placed and considered in the other suit for passing a judgment.”

Circumstances in which consolidation can be refused

The courts have refused to consolidate suits where the cause of action, parties and subject matter were not common. [3] As the paramount consideration has been convenience and expedience in the interests of justice, consolidation is usually ordered at the initial stages and trial and the courts have refused to consolidate suits where any or all of the suits was at final stage such as where evidence had already been recorded in order to prevent inconvenience and injustice to the parties.[4]

In some cases, where the court considers consolidation inexpedient, such as by reason of one suit being in its final stage, it may achieve the purpose of avoiding conflicting judgements through exercising other powers vested in it, for eg., a court may stay a subsequently filed suit until the final determination of an earlier suit, under the doctrine of sub judice where two or more suits involve substantially the same or identical matters in issue between the same parties[5].

[1] 2010 MLD 1230 titled “Abdul Rahim v.  Muhammad Tahir Khan and others”

[2] Ibid.

[3] PLD 1991 Azad J & K 86 titled “Taj Din versus Sher Muhammad and others”

[4] 2006 YLR 460 titled “Muhammad Hafeez Khan and another v. Muhammad Azeem”

[5] See section 10, Code of Civil Procedure, 1908

Thereafter, the decision in the earlier suit to the extent of the common issues would operate as res judicata in the latter suit.[1]

The procedure to be followed in consolidated suits

The procedure relating to consolidated suits has evolved with practice and time. Some of the settled procedural aspects are: consolidation of suits must be through an express order where after the suits are heard together[2]; a consolidated trial is held through framing of consolidated issues in which common evidence is led between parties[3];  for the purpose of consolidated trial, either party may be named the plaintiff or defendant by a court; [4] consolidated suits are to be disposed of through a common judgement, however, separate decree sheets are required to be drawn up in each case in accordance with law.[5] In respect of the last afore mentioned aspect, the relevant portion of the judgement reported as PLD 2016 Supreme Court 409 titled “Zahid Zaman Khan and others v. Khan Afsar and others”, is reproduced herein below for the sake of clarity:

“7…We direct all the trial courts of the country that where two or more suits have been consolidated and disposed of through a common judgment, that separate decree sheets with all the material particulars as per the requirements of Order XX of the C.P.C. must be drawn up. This direction shall be for the future and consequence of non-compliance thereof shall be considered in appropriate cases.”

Structuring of discretion

While consolidation of suits is a discretionary power vested in the courts, the courts are required to exercise this discretion in a reasonable and structured manner.[6] In some situations, the answer whether the circumstances warranted consolidation may be clear and unambiguous,

[1] Section 11, Code of Civil Procedure, 1908

[2] PLD 2001 Supreme Court (AJ&K) 15 titled “Muhammad Afzal Khan v. Mst. Mansha Bi”

[3] 2010 MLD 1230 titled “Abdur Rahim v. Muhammad Tahir Khan and others”

[4] 2022 MLD 1784 titled “Nazar Abbas v. Additional District Judge and another”

[5] 2016 Supreme Court 409 titled “Zahid Zaman Khan v. Khan Afsar and others”

[6] 2022 SCMR 849 titled “Muhammad Aurangzeb v. Karim Khan alias Abdul Karim Khan”

however, this is not so in every case. For instance, the determination of the nature or subject matter of a suit in a case where two or more suits may be affected both by commonalities and differences. In its determination, the court may also be constrained to consider factors such as the effect of consolidation in time sensitive cases such as where the law prescribes summary proceedings.[1] To cite an example, in the judgement reported as 2006 YLR 2059 titled “Khawaja Nayyar Qayyum v. Zubair Qayyum and 6 others”, the Hon’ble Lahore High Court was pleased to reverse an order setting aside a decree for partition and remanding a case to the trial court, on the basis that a plaintiff was entitled to confine his suit for partition to the property described in the plaint and there was no requirement to consolidate all other properties subsisting in the name of the common predecessor of the parties. Eventually, therefore, it falls back on the decision of the individual learned Judge in light of his subjective assessment of the matter.

An interesting approach has been taken in a recent case decided by the Hon’ble Lahore High Court in Writ Petition no. 21798 of 2022 titled “Aila Azhar, etc. v. Ali Kuli Amin-ud-Din, etc.”, [2] decided on 09.03.2023, in adjudicating upon an order consolidating two suits for partition of properties, one of which was filed under the Partition Act 2012 and the other a suit for declaration. In upholding the order consolidating the suits while deciding the revision filed against the order of consolidation, the Hon’ble Single Bench observed that the multiple properties sought to be partitioned, even if some were disputed, may be consolidated and those properties that were admitted by both parties to be immediately partitioned, were liable to be dealt with separately vide a preliminary decree on the basis of admissions, if the concerned party wished to proceed with such an application. The efficacy of this approach remains to be seen from the results of the pending proceedings in the particular case.

While continued adjudication will illustrate the effect of the addition of Rule 6-A in Order II CPC, at first glance it seems that the vast discretionary power vested in a court in this regard has simply been reduced to writing through the said amendment. Whether prior to or after the addition of Rule 6-A, Order II CPC, the exercise of power remains discretionary.

Remedy against an order consolidating/refusing to consolidate suits and the scope of revisional powers

[1] 2006 YLR 2059 titled “Khawaja Nayyar Qayyum v. Zubair Qayyum and 6 others”

[2] Judgement dated 09.03.2023 in Writ Petition no. 21798 of 2022 passed by the Hon’ble Lahore High Court, Lahore.

An order whereby a court consolidates or refuses to consolidate suits does not constitute an appealable order under the provisions of the CPC.[1] Such an order may be challenged by an aggrieved party before a court through invoking its revisional jurisdiction[2]. It is pertinent to note that the parameters of revision are prescribed under section 115 CPC. The scope of revision is limited to adjudicating on whether the exercise or refusal to exercise the discretion to consolidate the case constitutes an illegality or error on the face of the record.[3] Indeed, in many cases, such a challenge has been successful and the courts have set aside the order of the court where the revisional court considers that the exercise or failure to exercise the discretion was not warranted in the circumstances of the case.[4] In the case reported as 2017 MLD 323 titled “Khalid Pervez Bhatti v. Mst. Madiha Rafiq”, a civil revision challenging an order passed by a District Judge whereby the learned Judge refused to consolidate suits, was accepted in the following terms as reproduced herein below:

“6. Undoubtedly, both the above mentioned suits were filed about at the same time and never ever efforts were made by the petitioner for their consolidation and at this belated stage effort to consolidate the two suits seems to be for the reason of delaying the suit for recovery filed by the respondent. However, it is also an admitted position that the subject matter of the two suits is the same i.e. the above noted promote and the cheque and in case the two suits are adjudicated separately there is likelihood of conflicting judgements. Since subject matter of the two suits is the same therefore, in the interest of justice it is proper that they be consolidated and heard together despite the fact that they are at different stages of adjudication. The learned District Judge while dismissing the application Under Section 24, C.P.C. by the petitioner exercised jurisdiction with material irregularity.

7. In view of above instant Civil Revision is allowed and impugned order dated 24.9.2016 is set-aside.”

However, as held by the Hon’ble Supreme Court in multiple decisions, unless a finding appears to be manifestly irrational and perverse, judges in revisional jurisdiction must refrain from

[1] Sections 104 read with Order XLIII Rule 1, section 105 of the CPC do not expressly include such an order in the list of appealable orders.

[2] Section 115 of the CPC.

[3] 2012 SCMR 730 titled “Administrator Thal Development versus Ali Muhammad”

[4] 2017 MLD 323 titled “Khalid Pervez Bhatti v. Mst. Madiha Rafiq”

substituting the findings of the civil court having jurisdiction with their own opinion and discretion of authority[1]. The afore referred principle has been enunciated by the Hon’ble Supreme Court in the judgement reported as 2022 SCMR 806 titled “Sardar Muhammad Kamal-Ud-Din Khan v. Syed Munir Syed, etc.”:

“11… Secondly, a revisional Court cannot substitute its own opinion, discretion or authority with that of the Civil Court, which, as in the present case, had jurisdiction and had exercised it; in such a scenario the High Court could only exercise revisional jurisdiction if the subordinate court had committed an illegality or a material irregularity, which was also not the case.”

The parameters of revisional jurisdiction therefore, ought to be adhered to in order to structure interference with the discretion vested in a trial judge to consolidate suits, failure of which would open floodgates for the filing of frivolous petitions in this regard.

[1] 2022 SCMR 806 titled “Sardar Muhammad Kamal-Ud-Din Khan v. Syed Munir Syed, etc.”  that further relies on PLD 1972 Supreme Court 69.