The consolidation of suits is a critical feature in the management of civil proceedings. In Pakistan, this is governed by the Code of Civil Procedure, 1908 (CPC), which serves as the cornerstone legislation for civil cases. Traditionally, the CPC did not offer explicit guidance on the consolidation of suits. The courts relied on their inherent powers under section 151 of the CPC to decide on such matters at their discretion.
However, a significant development came from the Lahore High Court, which amended the CPC by adding Rule 6-A to Order II.The Civil Procedure Code (Amendment of First Schedule) 2018 Amendments in the First Schedule of the Code of Civil Procedure 1908 (vide Lahore High Court Notification No. 237/Legis/XI-Y-26 dated 15-08-2018 published in The Punjab Gazette No. 08 on 22-08-2018)
This amendment, effective within the jurisdiction of the Lahore High Court, provides:
“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.”
It’s worth noting that Rule 6-A is directory in nature, not mandatory. The amendment codifies the discretionary power previously wielded by the courts, particularly concerning the objectives of avoiding multiplicity of litigation or conflicts in judgments. This is consistent with established precedents set by superior courts.
Turning our attention to past decisions, we find that the courts have adhered to a set of broad principles while deciding whether or not to consolidate suits. These principles state that the consolidation can be initiated either by the court itself or upon the application of either party, and preferably at the earlier stages of the suit. Any objections to consolidation must be raised promptly, or else they are considered to be waived. The court exercises discretion, and it’s not mandatory to consolidate suits.
Historically, the decision-making process has been rooted in equitable principles, taking into account the expediency and convenience of all parties involved. The Supreme Court of Pakistan, in its judgement in the case of “Zahid Zaman Khan and others v. Khan Afsar and others” (PLD 2016 Supreme Court 409), elaborated on this point. In paragraph 7 of the judgement, it is stated that:
“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.”
The jurisprudential landscape concerning the consolidation of suits in Pakistan is both intricate and nuanced. In cases where counter suits involve the same subject matter and parties, courts have generally found it incumbent to order consolidation. This principle finds its legal basis in the judgement in Abdul Rahim v. Muhammad Tahir Khan and others, 2010 MLD 1230, where paragraph 5 clearly delineates that in the absence of consolidation, separate evidence would need to be led in each case, thereby leading to inefficiencies in the judicial process.
However, there are circumstances where consolidation can be refused. The courts have been prudent in evaluating whether the cause of action, parties, and subject matter are common across the suits being considered for consolidation. The convenience and expedience for all parties involved serve as guiding factors. For instance, courts are less inclined to consolidate suits that are at a final stage, such as where evidence has already been recorded, to prevent causing inconvenience and injustice. Furthermore, the doctrine of sub judice serves as an alternative mechanism to avoid conflicting judgements, thereby allowing a court to stay a subsequently filed suit pending the final determination of an earlier suit.
When it comes to the procedural aspects of consolidated suits, the law is rather clear. The suits must be heard together following an express order for consolidation. This entails the framing of consolidated issues and the leading of common evidence. Additionally, while a common judgement is rendered, separate decree sheets must be drawn up in each case, as highlighted in PLD 2016 Supreme Court 409 titled “Zahid Zaman Khan and others v. Khan Afsar and others.”
The courts are entrusted with the discretionary power to consolidate suits, but this power is to be exercised in a structured manner. While in some cases the need for consolidation may be overtly clear, in others, the situation may be riddled with complexities. Courts are often called upon to weigh a multitude of factors, including the nature of the suit, the subject matter, and even time sensitivities, as evidenced by the judgement in 2006 YLR 2059 titled “Khawaja Nayyar Qayyum v. Zubair Qayyum and 6 others.”
The recent case of Aila Azhar, etc. v. Ali Kuli Amin-ud-Din, etc., Writ Petition no. 21798 of 2022, decided by the Lahore High Court, signals a nuanced approach in the realm of suit consolidation. The court upheld an order that consolidated a suit for partition under the Partition Act 2012 with a suit for declaration. What is particularly noteworthy is the court’s view that properties admitted by both parties to be immediately partitioned should be dealt with separately through a preliminary decree, provided the party wishes to proceed on those grounds. This development, while innovative, still awaits its practical test in the pending proceedings of the case.
In this case the references to “Zahid Zaman Khan v. Khan Afsar and others” (PLD 2016 SC 409) and “Muhammad Yaqoob v. Behram Khan” (2006 SCMR 1262) serve to elucidate the Supreme Court of Pakistan’s stance on the consolidation of suits. These cases underscore that the court has inherent power to consolidate suits, not as an arbitrary exercise of judicial discretion, but as a considered action aimed at the broader goals of justice. The purpose is to avoid multiplicity of litigation, eliminate contradictory judgments, and prevent abuse of the court’s process. These aims are not exhaustive; the court may have other grounds that persuade it to consolidate cases, depending on the individual facts and points of law at issue.
In “Muhammad Yaqoob v. Behram Khan”, the Supreme Court was particularly explicit about several key points. First, consolidation is imperative where a common subject of claim is in dispute in counter-suits to avoid conflicting decisions. Second, the consent of the parties is not a prerequisite for the court to exercise its inherent powers to consolidate. Third, the trial court’s failure to consolidate, in that case, was seen as an error that was corrected by the higher court.
These principles align with the notion that no hard and fast rule can be established for the consolidation of suits; it is a matter to be determined based on the specific facts and points of law in each case. Importantly, the court must be persuaded that the interests of justice demand consolidation, and it should order such only if no prejudice is caused to any litigant.
In summary, the consolidation of suits is not merely a procedural tool but a substantive exercise of judicial power aimed at ensuring the fair and efficient administration of justice. The court’s power to consolidate is rooted not just in procedural codes but also in its inherent powers to do justice between the parties. The exercise of this power is to be nuanced and tailored to the circumstances of each case, always keeping in view the overarching goals of avoiding multiplicity of litigation, conflicting judgments, and abuse of process.
The introduction of Rule 6-A in Order II CPC might seem to have crystallised into written form the discretionary power that courts have always exercised, but its true impact remains to be seen as cases continue to be adjudicated under this amended rule.
When it comes to remedies against an order consolidating or refusing to consolidate suits, the Code of Civil Procedure (CPC) does not provide for an appeal. However, aggrieved parties can invoke the court’s revisional jurisdiction. The parameters for this are set out in section 115 of the CPC. A court in its revisional capacity would examine whether the order to consolidate or not, constitutes an illegality or an error manifest on the record.
In Khalid Pervez Bhatti v. Mst. Madiha Rafiq, 2017 MLD 323, the court successfully set aside an order by a District Judge refusing to consolidate suits, stating that separate adjudication could potentially lead to conflicting judgements, given the common subject matter. Here, the exercise of revisional powers led to an outcome that was deemed to be in the interest of justice.
However, the exercise of revisional jurisdiction is not without its bounds. As the Supreme Court stated in Sardar Muhammad Kamal-Ud-Din Khan v. Syed Munir Syed, etc., 2022 SCMR 806, a revisional court should not substitute its own opinion for that of the civil court which had the original jurisdiction, unless the lower court’s decision is manifestly irrational or materially irregular.
The exercise of discretion in the consolidation of suits, therefore, remains a complex interplay of legal principles, judicial precedents, and practical considerations. The introduction of Rule 6-A may offer a semblance of codification, but the true measure of its impact is yet to be determined. Likewise, while revisional jurisdiction offers a safeguard against erroneous consolidation decisions, the scope of this remedy is carefully circumscribed to avoid the abuse of judicial processes. The balance is delicate but crucial for the efficient and equitable administration of justice.
More Recent cases:
The case of NAZAR ABBAS vs ADDITIONAL DISTRICT JUDGE, cited as 2022 MLD 1784, LAHORE-HIGH-COURT-LAHORE, provides an instructive account of the legal complexities surrounding the consolidation of suits, particularly in cases involving counter-suits with intertwined issues. This case is governed by O.II, R.6-A of the Civil Procedure Code, which deals with the consolidation of suits.
A notable aspect of this case is its focus on the procedural intricacies that arise after the consolidation of suits. Both the petitioner, Nazar Abbas, and the respondent had instituted separate suits against each other— one for challenging a mutation and the other for specific performance concerning disputed land. Following the consolidation of these suits, both parties presented their evidence, and the respondent later sought to introduce additional witnesses. The Trial Court refused to record the evidence of these additional witnesses, a decision that was subsequently overturned by the Revisional Court.
The Lahore High Court, however, offered a different perspective. It emphasised that in cases where suits are consolidated due to the similarity of issues, they should be decided conjointly on the basis of a consolidated trial. In this particular instance, the Trial Court had consolidated the suits after considering the facts, designating the respondent as the plaintiff and the petitioner as the defendant. The respondent had already presented both her affirmative and rebuttal evidence in both suits and thus could not claim the right to reopen the case on the pretext that her rebuttal evidence in the connected suit instituted by the petitioner had not been recorded.
The judgment serves as an important reminder that the consolidation of suits is not merely a procedural formality but an intricate legal process that must be navigated with caution. It imposes a degree of finality on the proceedings, limiting the parties’ ability to introduce new evidence unless explicitly permitted under exceptional circumstances.
The case also reiterates the principle that the consolidation of suits serves the broader objective of judicial economy and the avoidance of conflicting judgments. Once suits are consolidated, the parties and the court are bound by the consolidated framework, making it incumbent upon the parties to present their full array of evidence within that framework. Any attempt to introduce new evidence after this point disrupts the procedural integrity of the consolidated trial, as the Lahore High Court clearly outlined.
In summary, the case underscores the need for strict adherence to procedural rules following the consolidation of suits, highlighting that the court’s discretion is not unfettered but must be exercised judiciously and in accordance with established legal principles.
Conclusions
Ultimately, the decision to consolidate is heavily reliant on the subjective assessment of the presiding judge. This discretionary power, although broad, is not unfettered and is guided by a constellation of legal principles and precedents aimed at ensuring that justice is not only done but is also seen to be done
In summary, the consolidation of suits in Pakistan’s civil proceedings is a blend of codified law and judicial discretion, guided by the overarching objective of serving the interests of justice. The incorporation of Rule 6-A into the CPC has added a layer of procedural clarity, aligning with the equitable principles historically employed by the courts. This development is a welcome step towards streamlining civil proceedings, reducing the potential for conflicting judgements, and improving the overall efficacy of the judicial process.
Some insights from pre-2018 cases
The case of ABDUR RAHIM KHAN vs MUHAMMAD TAHIR KHAN, C.R. No. 458 of 2010, decided on 6.4.2010,(PLJ 2010 Peshawar 129) provides a critical insight into the intricacies and nuances related to the consolidation of suits in the Pakistani legal landscape. This case falls under the purview of Section 115 of the Civil Procedure Code, 1908 (CPC), and addresses multiple facets of suit consolidation, from the procedural aspects to the consequences of failing to adhere to legal formalities.
One of the key takeaways from the case is the court’s emphasis on the necessity of making a specific order for the consolidation of suits that involve the same subject matter and parties. The court relied on established legal principles to assert that it is “incumbent upon the trial Court to make a specific order for consolidation of both the suits and to frame consolidated issues” (Page 132, A & B). The case further elucidates that in the absence of such an order, the evidence recorded in one suit cannot be transferred and considered valid for another, thereby leading to unsubstantiated claims and judgments (Page 132, C).
The judgment also focuses on the pitfalls of not following legal procedures, stating that any laxity in observing the legal requirements can result in a ‘lacuna’ that is “of palpable nature and could not be remedied by the parties through their mutual agreement” (Page 133, D). This observation reinforces the imperative need for adhering to the legal formalities outlined in the CPC and the Qanoon-e-Shahadat Order 1984.
This case serves as a cautionary tale for legal practitioners and judges alike. It underlines the importance of meticulous adherence to legal provisions when dealing with the consolidation of suits. Failure to do so not only hampers the course of justice but also leads to procedural complexities that could be easily avoided. The judgment makes it abundantly clear that the absence of a specific consolidation order leads to a legal void that cannot be filled by mutual agreements between parties, thus nullifying any subsequent judgments. Therefore, the court’s decision to remand the case for observing all legal formalities vindicates the emphasis on strict compliance with the law.
In conclusion, the case underscores the critical role played by procedural correctness in the consolidation of suits and serves as a guidepost for the proper conduct of such matters, emphasizing the importance of following the laid down legal framework to ensure that justice is not only done but is seen to be done.
Writ Petition No.11358/2013 (Fareed Gul Vs. Additional District Judge Multan)
Legal Principles and Facts:
- Succession Act, 1925: Fareed Gul, the petitioner, originally filed for a succession certificate, including all the legal heirs of Gul Muhammad. The court suggests that Fareed Gul’s application was more straightforward, solely focusing on determining legal heirs and the distribution of the estate.
- Revision Petitions: Mst. Nazeer Begum (respondent No.2) filed multiple applications and revision petitions. One of her revision petitions was successful, prompting Fareed Gul to challenge it through this writ petition. It was contended that the multiple revision petitions, particularly the second one, were not competent and violated procedural norms.
- Consolidation of Cases: A major legal issue was the consolidation of applications for succession certificates. The court found that such consolidation is not permissible under the Succession Act or the Civil Procedure Code, especially when the applications have different parties and causes of action.
- Res Judicata: Fareed Gul’s counsel argued that certain issues which were not challenged in the first revision could not be raised in the second under Order II Rule 2 CPC. This speaks to the broader legal principle of res judicata, which aims to prevent the same dispute from being litigated multiple times.
- Misuse of Succession Application: The court observed that respondent No.2’s application seemed to extend beyond the scope of a typical succession certificate application. It included allegations of fraud and added parties who were not legal heirs, matters which are generally the subject of a civil suit.
- Jurisdiction of Revisional Court: The court held that the revisional court exceeded its jurisdiction by allowing the consolidation, thereby causing a miscarriage of justice.
The judgment concludes by setting aside the impugned order, thus siding with Fareed Gul. The court found that the Additional District Judge in Multan overstepped its jurisdiction and violated the provisions of the Succession Act, 1925, and procedural norms.
In the judgement, several key provisions and legal issues related to the Succession Act of 1925 and the consolidation of suits were brought into focus:
Succession Act, 1925:
- Issuance of Succession Certificate: The core issue of the case revolves around Section 372 of the Succession Act, 1925, which deals with the issuance of a succession certificate. The petitioner, Fareed Gul, initially filed for the certificate to cover the legal heirs and movable properties of the late Gul Muhammad.
- Scope and Limitations: The court observed that the application filed by Mst. Nazeer Begum (respondent No.2) seemed to be more akin to a civil suit than a mere application for a succession certificate. According to the court, allegations of fraud and inclusion of parties who are not legal heirs go beyond the permissible scope of Section 372 of the Succession Act.
Consolidation of Suits:
- No Legal Provision for Consolidation: Both the petitioner and the court noted that there is no specific provision in the Code of Civil Procedure, 1908, that allows for the consolidation of applications for succession certificates. Therefore, the consolidation of applications with different parties and causes of action was viewed as exceeding the jurisdiction of the Additional District Judge.
- Conflict of Judgments: Although the Code of Civil Procedure allows for the consolidation of different suits to avoid conflicting judgments, this is only permissible when the parties and causes of action are the same. In this case, the applications for succession certificates had different parties and causes of action, making consolidation inappropriate.
- Exceeding Jurisdiction: The court found that by allowing the consolidation of distinct applications for succession certificates, the Additional District Judge in Multan had exceeded its jurisdiction.
The court ultimately decided that the consolidation was not sustainable under the law, siding with Fareed Gul’s arguments that it violated the Succession Act, 1925, and procedural norms. The impugned judgment was set aside, and the Writ Petition was allowed
