PLJ 2023 Lahore 199
Civil Procedure Code, 1908 (V of 1908)--
----O.XXXIII Rr. 1 & 2--Specific Relief Act, (I of 1877), S. 39--Suit for recovery before ADSJ Mailsi and suit for cancellation of pronote at Civil Judge Mailsi--Application for consolidation of suits--Accepted--Challenge to--Both suits are tried together, this engenders another question as to stage at which such suits are to be consolidated and tried together--Withdrawal of suit for cancellation instituted by respondent and its entrustment to Court of an ADJ where suit under Order XXXVII, CPC, of petitioner falls within power of District Judge--Once this power vests with District Judge, through Impugned Order both suits have been rightly clubbed together
and it would eliminate possibility of a conflicting judgment qua same subject matter, Impugned Order does not suffer from any infirmity--Revision petition dismissed. [Pp. 206 & 207] E & F
Punjab Civil Courts Ordinance, 1962 (II of 1962)--
----Ss. 7 & 12(2)--Jurisdiction of District Judge--District Judge has original jurisdiction over civil disputes without any limit as regards value involved thereof and also has power to withdraw proceedings from a Civil Judge and either dispose of himself or entrust it to any other judge subordinate to him--District Judge is Court of principal civil jurisdiction and is competent to hear and adjudicate any civil claim. [Pp. 201, 202 & 203] A & B
PLD 2016 SC 409 ref.
Civil Procedure Code, 1908 (V of 1908)--
----O.XXXVII--Object of summary procedure--Object of summary procedure envisaged under Order XXXVII to provide efficacious remedy and avoid prolongation of commercial litigation needs to be kept in juxtaposition with object and purpose of consolidation of suits, which aims at avoiding conflicting judgments. [P. 206] C
Civil Procedure Code, 1908 (V of 1908)--
----O.XXXVII--Consolidation of suits--If a suit under Order XXXVII on basis of negotiable instrument is decreed by an Additional District Judge and very negotiable instrument is subsequently cancelled by Civil Court although decision in former suit ought to operate as res judicata in suit under Section 39 of Act, 1877 for cancellation of said instrument. [P. 206] D
Mr. Muhammad Qadir Asif Toor, Advocate for Petitioner.
Mr. Muhammad Ali Siddiqui, Advocate for Respondent No. 1.
Date of hearing: 20.1.2022.
PLJ 2023 Lahore 199
[Multan Bench Multan]
Present: Anwaar Hussain, J.
DOUD KHAN--Petitioner
versus
MUHAMMAD RASHID, etc.--Respondents
C.R. No. 884 of 2021, heard on 20.1.2022.
Judgment
Brief facts of the case are that the petitioner instituted a suit for recovery on the basis of pro-note, under Order XXXVII of the Code of Civil Procedure, 1908 (“the, CPC”), before the learned Additional District Judge, Mailsi, against the respondent, wherein admittedly leave has been granted in favour of the respondent. The respondent also instituted suit for cancellation of the same pro-note, before the learned Civil Judge 1st class, Mailsi, District Vehari, against the petitioner. Thereafter, the respondent filed an application before the learned District Judge, Vehari, for consolidation of above referred suits, so that the same be tried together by one Court to avoid conflicting judgments, which application has been accepted vide impugned order 17.07.2021, whereby the suit from the Court of learned Civil Judge has been withdrawn and entrusted for adjudication to the Court of learned Additional District Judge, Mailsi, where suit under Order XXXVII, of the CPC was pending. Hence, this civil revision has been filed.
2. Learned counsel for the petitioner submits that the suit instituted under Order XXXVII, Rules 1 & 2 of the CPC on the basis of an instrument executed under the Negotiable Instruments Act, 1881 (“the Act, 1881”) cannot be clubbed with a suit instituted before the Court of plenary jurisdiction for cancellation of the same instrument since the nature, procedure and jurisdiction of both the Courts is different and the District Judge has no power to withdraw the latter suit. Places reliance on “A.B.L. v. Khalid Mahmood” (2009 CLC 308) and “Amanat Ali v. Khalid Nawaz” (2016 YLR Note 96) to support his contentions.
3. Conversely, learned counsel for Respondent No. 1 submits that in order to avoid conflicting judgments, the impugned order has rightly been passed and places reliance on “Sahibzada Azhar Saleem v. Muhammad Hanif” (2002 MLD 696); “M.L. Traders through Proprietor and others v. Judge Banking Court No. IV, Lahore and 2 others” (2007 CLD 634); and “Khalid Pervez Bhatti v. Mst. Madiha Rafiq” (2017 MLD 323) to support his contention.
4. The only legal question which requires adjudication through the present civil revision is to examine whether a District Judge can withdraw a suit of cancellation of a negotiable instrument, filed under Section 39 of Specific Relief Act, 1877 (hereinafter “the Act 1877”), from the Civil Court and entrust the same for adjudication to the Court of an Additional District Judge where recovery suit on the basis of same negotiable instrument is pending adjudication in terms of Order XXXVII, CPC and if so, under what circumstances?
5. In order to render the opinion of this Court, it is imperative to have a glance through the relevant law on the subject in respect of the nature, procedure and jurisdiction of both the Courts on one hand and the object of the summary procedure envisaged for decision in suit instituted under Order XXXVII, CPC, on the other hand.
6. The CPC read with provisions of the Punjab Civil Courts Ordinance, 1962, (hereinafter “the Ordinance”), contemplates
the relevant law regarding subject matter of the instant lis. Under Section 7 read with Section 12(2) of Ordinance, the District Judge has original jurisdiction over civil disputes without any limit as regards the value involved thereof and also has the power to withdraw proceedings from a Civil Judge and either dispose of himself or entrust it to any other judge subordinate to him. Section 12(2) of the Ordinance contemplates as under:
“The District Judge may withdraw any such proceedings taken cognizance of by or transferred to a Civil Judge, and may either himself dispose of them or transfer them to a Court under his control competent to dispose of them.”
Similarly, under Section 24 of the CPC, general power of the transfer and withdrawal of the cases, upon the District Court has been also conferred in the following manner:
“24. General power of transfer and withdrawal.
(1) On the application of any of the parties and after notice to the parties and after hearing such of them as desire to be heard, or of its own motion without such notice, the High Court or the District Court may at any stage.
(a) transfer any suit, appeal or other proceeding pending before it for trial or disposal to any Court subordinate to it and competent to try or dispose of the same, or
(b) withdraw any suit, appeal or other proceeding pending in any Court subordinate to it, and
(i) try or dispose of the same; or
(ii) transfer the same for trial or disposal to any Court subordinate to it and competent to try or dispose of the same; or
(iii) retransfer the same for trial or disposal to the Court from which it was withdrawn.
(2) Where any suit or proceeding has been transferred or withdrawn under sub-section (1), the Court which thereafter tries such suit may, subject to any special directions in the case of an order of transfer, either re-try it or proceed from the point at which it was transferred or withdrawn.
(3) For the purposes of this Section, Courts of Additional and Assistant Judges shall be deemed to subordinate to the District Court.
(4) The Court trying any suit transferred or withdrawn under this section from a Court of Small Causes shall, for the purposes of such suit, be deemed to be a Court of Small Causes.”
(Emphasis provided)
A conjunctive reading of the above two provisions of law shows that the District Judge is the Court of principal civil jurisdiction and is competent to hear and adjudicate any civil claim. Decision in case reported as “Sheikh Iqbal Hussain v. Anwar Hussain” (2005 YLR 181) is referred in this regard. Law also confers the power on the District Judge to withdraw a suit from one subordinate Court and entrust the same to another. In case of Khalid Pervez Bhatti supra, the learned Islamabad High Court in a case allowed the consolidation of the two suits pending in two different Courts, which relief was disallowed by the learned District Judge, Islamabad on the ground that the jurisdiction of the two Courts is different and the District Court does not have the jurisdiction and power to hear and decide a case for cancellation of the negotiable instrument while holding that under Section 7 of the Ordinance, the District Judge has unlimited jurisdiction with respect to the Civil Suits/claims. The learned Islamabad High Court referred Section 12(2) of the Ordinance to hold that the District Judge may withdraw any proceedings from a Civil Judge and may either himself dispose them of or transfer them to a Court under his control competent to dispose them of.
7. As regards consolidation of the cases, the Hon’ble Supreme Court of Pakistan in case titled “Zahid Zaman Khan and others v. Khan Afsar and others” (PLD 2016 SC 409) laid down the principles for consolidation of the suits and it was observed as follows:
“7. ... 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 judgements. 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 ……”
Somewhat similar observation was made by the Hon’ble Apex Court in case titled “Muhammad Yaqoob v. Behram Khan” (2006 SCMR 1262). Thus, it has become well-coalesced principle that no hard and definitive formulation of principles could be made for regulating the consolidation of suit. The fundamental considerations of avoidance of multiplicity of litigation, obviation of any possibility of conflicting judgment as a matter of public policy and prevention of abuse of process of the Court should be guiding principles for the consolidation of suits by the Court. It is well settled principle of law that common issues should be resolved together instead of unnecessarily keeping one suit pending while the other is decided particularly when both the suits involve the same subject matter and the decision in one would have substantial bearing on the other if not rendering the other suit infructuous at all.
8. Having held as above, it is in fitness of things to examine the difference in procedure governing an ordinary suit under Section 39 of the Act 1877 and the summary suit under Order XXXVII, CPC. In this regard, at the outset, it would be instrumental and useful to state for the purposes of present lis that it has become an unexceptionable and hard-etched principle that procedural law is a tool to achieve the substantive justice which is the ultimate end sought to be achieved through any procedural law. One would readily agree if it is stated that means i.e., procedural law should not be so contrived and/or construed as to make the achievement of the end an unrealizable dream. This principle underlies and underscores the settled law that the Court ought to act on the principle and assumption that every procedure is to be taken as prohibited unless it is expressly provided for rather the assumption and presumption prevailing with the Court should be that every procedure is permissible which furthers and advances the administration of justice even if there is no provision permitting and/or prescribing such procedure. Thus, it lies with the Court to adopt any procedure which works in furtherance of administration of justice unless it is considered that such procedure is harmful and detrimental to the said cause. I am fortified by the law laid down in “Zahid Zaman Khan and others v. Khan Afsar and others” (PLD 2016 SC 409) and “H.M. Saya & Co., Karachi v. Wazir Ali Industries Ltd., Karachi and another” (PLD 1969 SC 65). Learned counsel for the petitioner has heavily relied on decision rendered in case of ‘ABL’ supra, wherein the learned Division Bench of this Court has disallowed consolidation on the ground that the “nature, procedure and jurisdiction” of the two Courts are different, and the decision has been followed by the learned single Bench of this Court by way of reported judgment dated 13.09.2021 rendered in Civil Revision No. 300/2017 titled “Hadeed Dawood v. Muhammad Ramzan”, however, the above ratio of law is not applicable in a situation where leave to defend is allowed in the suit instituted under Order XXXVII, CPC as in such situation, the suit for cancellation of a negotiable instrument may be transferred to the Court of an Additional District Judge hearing the suit under Order XXXVII, as the procedure to be adopted in the suit for recovery under Order XXXVII after granting of leave to appear and defend is that of a regular suit, which was not the situation in “ABL” supra. This view is fortified from the reading of the language of Order XXXVII, Rule 7, CPC, which states as under:
“7. Procedure in suits.--Save as provided by this Order, the procedure in suits hereunder shall be the same as the procedure in suits instituted in the ordinary manner.”
Cases reported as “Abdul Sattar v. Mudassar Ali” (2014 YLR 2087), “Hamid Ghani v. Muhammad Basit Siddiqui” (PLD 2010 Lahore. 487), “Irfan Afzal v. Zahid Iqbal” (2004 CLC 384) and “Sahibzada Azhar Saleem v. Muhammad Hanif” (2002 MLD 696) are referred in this regard. This Court is also fortified by the decision of the Hon’ble Supreme Court in case reported as “First Women Bank Limited v. High Court of Sindh, Karachi and 4 others” (2004 SCMR 108) where the petitioner therein sought leave to appeal against the order, dated 04.12.2000 passed by learned Chief Justice of the Sindh High Court in Transfer Application No. 17 of 2000 whereby learned High Court transferred Suit No. 7 of 1997 filed by the petitioner-Bank therein against Respondents Nos. 2 to 5 for recovery of Rs. 79,64,375 of 1988 from Banking Court No. 1, Karachi to the Sindh High Court for proceeding along with Suit No. 83 of 1997 filed by Malik Jehangir Khan Respondent No. 1 against the petitioner-Bank, Respondents Nos. 3 to 5 and others, for declaration, injunction, cancellation of documents and damages in the sum of Rs. 20 million for loss of reputation and Rs. 5,00,000 per month from December, 1996 till the delivery of WAPDA Bonds pledged with the petitioner-Bank and after examining the material on record and going through the impugned judgment, the Hon’ble Supreme Court of Pakistan was pleased to hold that the order passed by the High Court is just, fair and equitable on the face of it and it does not suffer from any inherent defect or error of jurisdiction. Their Lordships were pleased to hold as under:
“…… We are of the view that the trial of both the suits would not only be expedient in the interest or justice but also in the interest of both the parties as joint trial of both the suits would certainly obviate the possibility of a conflict of judgment. In our view apprehensions expressed by the petitioner-Bank’s counsel are without any basis and no finding can be given on mere surmises. Precedent case does not appear to have any bearing on the facts of t his case.”
The upshot of the above mentioned dicta of the Hon’ble Supreme Court is that consolidation of the suits is to be ordered in order to avoid contradictory judgements and for better administration of justice and merely that the procedure of the two Courts are different is not an impediment in this regard. Moreover, perusal of Rule 1 of Order XXXVII reveals that this Order shall apply to the High Court, District Court and to any other Civil Court specially notified in this behalf by the High Court. Thus, it is evident that Order XXXVII does not deal with the jurisdiction only rather provides a procedure to be adopted for trial of certain suits and once leave to defend is granted in suit instituted under Order XXXVII, its procedure becomes that of a regular suit. “Sh. Abdul Majid v. Syed Akhtar Hussain Zaidi” (PLD 1988 SC 124) is referred in this regard.
9. Before concluding the discussion, it is also imperative to note that the object of summary procedure envisaged under Order XXXVII to provide efficacious remedy and avoid prolongation of commercial litigation needs to be kept in juxtaposition with the object and purpose of consolidation of suits, which aims at avoiding conflicting judgments. If the suit instituted under Order XXXVII on the basis of negotiable instruments and pending in the Court of Additional District Judge and the suit pending before Civil Court for cancellation of same negotiable instrument are not clubbed and consolidated, the judgment in one would have the effect of frustrating the other. It would be anomalous situation if a suit under Order XXXVII on the basis of negotiable instrument is decreed by an Additional District Judge and the very negotiable instrument is subsequently cancelled by the Civil Court although the decision in the former suit ought to operate as res judicata in the suit under Section 39 of Act, 1877 for cancellation of the said instrument, which is yet another reason for consolidating both the suits, therefore, it would be in consonance with the principles of administration of justice and public policy that both the suits are tried together, however, this engenders another question as to the stage at which such suits are to be consolidated and tried together. Special summary procedure provided under Order XXXVII whereby a defendant is precluded from presenting his defence unless leave to appear and defend is granted would be frustrated if leave is granted in every case where cancellation has been sought by institution of a civil suit. In view of the above discussion, it is considered opinion of this Court that no definitive and straight-jacket formula could be laid down for consolidation of two suits and the same is to be decided on case to case basis because a blanket permission to consolidate every suit for cancellation of instruments with the suit for recovery under Order XXXVII would nullify and frustrate the very object of summary procedure envisaged under Order XXXVII. The consolidation ought not to be effected in such a way that it defeats the very purpose and intent of Order XXXVII. For instance, if the two suits are clubbed and/or consolidated in one Court, before the leave is granted in the Order XXXVII suit, this would render the summary procedure envisaged under Order XXXVII
redundant, since leave would have to be granted in any event so that common issues can be framed. Similarly, consolidation of suits should not be a rule but should be ordered keeping in view the facts of each case. Several considerations, inter alia, including the stage of proceedings, the parties involved and whether the subject matter of both suits is identical could weigh with the Court when deciding the question of consolidation.
10. Keeping in view the above discussion qua the nature of the suits, the procedure to be followed and the jurisdiction of the two Courts, in the instant case where the leave to defend has been granted in the suit instituted by the petitioner under Order XXXVII, the withdrawal of the suit for cancellation instituted by the respondent and its entrustment to the Court of an Additional District Judge where the suit under Order XXXVII, CPC, of the petitioner falls within the power of the District Judge. Once this power vests with the District Judge, through the Impugned Order both the suits have been rightly clubbed together and it would eliminate the possibility of a conflicting judgment qua the same subject matter, hence, the Impugned Order does not suffer from any infirmity.
11. In the sequel, this civil revision, being bereft of any merit is dismissed with no order as to costs.
(Y.A.) Petition dismissed
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