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Shri Hori Lal and anr. Vs. the Board of Revenue, U.P., Allahabad and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberMisc. Appln. under O. 45 R. 4 of C. P. C. in SCA No. 257 of 1958
Judge
Reported inAIR1960All133
ActsCode of Civil Procedure (CPC) , 1908 - Order 45, Rule 4
AppellantShri Hori Lal and anr.
RespondentThe Board of Revenue, U.P., Allahabad and ors.
Appellant AdvocateS.C. Khare, Adv.
Respondent AdvocateV.K.S. Chowdhary, Adv. and ;Standing Counsel
DispositionApplication dismissed
Excerpt:
civil - consolidation of writ petitions in appeal - six different writ petitions filed - question of law involved same - one rejected on one day - five on next day in view of rejection of first writ - in appeal request for consolidation of all writ applications - ground that all writs decided by same judgment - held, all writs not decided by one judgment - rejection of five writs was in view of rejection of first writ - separate orders of rejection made for each writ. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act,..........of bishambhar singh not being brought on the record. the defendants of eight suits filed writ petitions in this court against the orders of the board of revenue. this court allowed those petitions and quashed the orders of the board of revenue that the second appeals had abated.on the rehearing of the second appeals the board of revenue allowed six of them holding the defendants-appellants in those second appeals to have acquired the right of adhivasi on the basis of their being recorded occupants in the village papers of 1356 f. the plaintiffs of these six suits then filed six writ petitions in this court. they were numbered civil misc. writ petitions nos. 2663, 2664, 2665, 2666, 2667 and 2668 of 1958.3. this court dismissed civil misc. writ no. 2664 of 1958 on the 6th of.....
Judgment:

Raghubar Dayal, J.

1. This is an application under Order XLV, Rule 4, of the Civil Procedure Code in Supreme Court Appeal No. 257 of 1958.

2. The facts leading to this application are as follows. One Oudh Behari Singh was a tenant of several plots of land in village Luhiyapur, tahsil Auraiya, district Etawah. He surrendered his tenancy rights in favour of the Zamindar Bishambhar Singh, in 1947. The zamindar then leased out the plots to different persons under written leases. Certain other persons' laid claim to the tenancy rights in such land. The result was that the different lessees who constituted thirteen sets instituted thirteen suits against the persons claiming tenancy rights in the plots of land leased out to the respective set of plaintiffs.

The trial court decreed the suits. The decrees were maintained on appeal by the defendants. The defendants then filed second appeals before the Board of Revenue. The Board of Revenue held that these thirteen appeals had abated on account of the legal representatives of Bishambhar Singh not being brought on the record. The defendants of eight suits filed writ petitions in this Court against the orders of the Board of Revenue. This Court allowed those petitions and quashed the orders of the Board of Revenue that the second appeals had abated.

On the rehearing of the second appeals the Board of Revenue allowed six of them holding the defendants-appellants in those second appeals to have acquired the right of adhivasi on the basis of their being recorded occupants in the village papers of 1356 F. The plaintiffs of these six suits then filed six writ petitions in this Court. They were numbered Civil Misc. Writ Petitions Nos. 2663, 2664, 2665, 2666, 2667 and 2668 of 1958.

3. This Court dismissed Civil Misc. Writ No. 2664 of 1958 on the 6th of October, 1958. The other five writ petitions were dismissed on the 7th of October, 1958 by the short order :

'This petition is concluded by our order dated the 6th October, last in Civil Misc. Writ No. 2664 of 1958. We therefore reject it'.

4. The petitioners of the six petitions have filed Supreme Court Appeals Nos. 257, 258, 259 260, 261 and 262 of 1958 for leave to appeal to the Supreme Court under Article 133(1) of the Constitution. Supreme Court Appeal No. 257 of 1958 is by Hori Lal and Ganga Ram, the petitioners in Civil Misc. Writ No. 2668 of 1958. Paragraph 25 of each of these Supreme Court Appeals is identical except for the omission of the number of the writ petition relating to that particular Supreme Court Appeal. Paragraph 25 of the Supreme Court Appeal No. 257 of 1958 is :

'That there were six connected writ petitions Nos. 2663, 2664, 2665, 2666 and 2667 of 1958, arising out of the connected suits, in which applications for leave to appeal to the Supreme Court are being filed and they together involve the properties in dispute of value more than Rs. 20,000/-and are thus entitled to a certificate of being fit for leave to appeal to the Supreme Court of India on that ground.'

5. It is conceded for these applicants for leave to appeal to the Supreme Court that the value of the subject matter of each writ petition was less than Rs. 20,000/- and that therefore none of the applicants is entitled to a certificate under Article 133(1)(a) or (b) of the Constitution. What is contended on their behalf is that they are entitled to this certificate if for pecuniary purposes the writ petitions are consolidated in which case the valuation of the subject matter involved in the six appeals will exceed Rs. 20,000/-.

The present application under Order XLV, Rule 4, of the Civil Procedure Code is for the consolidation of the six Supreme Court Appeals for the purposes of pecuniary valuation. The application is opposed both on the ground that the consolidation is not possible under Order XLV, Rule 4, C. P. C. and on the ground that even on consolidation the value of the subject matter o the six writ petitions will not exceed Rs. 20,000/-, We have not heard the learn-ed counsel for the parties on the question of actual valuation in case the writ petitions are consolidated as we are of opinion that the contention for the respondents is correct and these petitions cannot be consolidated.

6. Rule 4, Order XLV of the Civil Procedure Code reads thus :

'For the purposes of pecuniary valuation suits involving substantially the same questions for determination and decided by the same judgment may be consolidated; but suits decided by separate judgments shall not be consolidated notwithstanding that they involve substantially the same question for determination.'

The six writ petitions were not decided by the same judgment. Writ Petition No. 2664 of 1958 was decided on the 6th of October, 1958. That judgment did not decide any other writ petition. The other five writ petitions were decided by five separate orders though identical in terms in view of the decision in writ petition No. 2664 of 1958 as the points of law urged for praying the quashing of the orders of the Board of Revenue were common. It is not possible therefore to hold that the six writ petitions were decided by the same judgment and it follows that these writ petitions cannot be ordered to be consolidated under Order XLV, Rule 4, C. P. C.

7. It is contended for the applicants that the writ petitions can be said to be decided by the same judgment, as the judgments in the other five writ petitions adopted the judgment in writ petition No. 2664 of 1958. This too is not a correct version. The judgment in writ petition No. 2664 of 1958 was not adopted in the other writ petitions. The judgments in the other writ petitions followed what had been laid down in the earlier judgment in writ petition No. 2664 of 1958.

This is done every day Previous rulings are relied upon for deciding subsequent cases. It cannot, strictly speaking, be said that the later cases have been decided by the judgments in the previous cases. The latter part of Rule 4, Order XLV, C. P. C. will become useless if such an interpretation be given. Suits decided by separate judgments are not to be consolidated notwithstanding that they involve substantially the same question for determination. Presumably such separate judgments must follow a similar line of reasoning.

Yet they are not treated as same judgment. The word 'same' means 'one', 'identical'. The appropriate meaning of the word 'same' in Rule 4 seems to be 'one'. The word 'separate' means 'distinct'.

8. In Bhagwan Singh v. Bhawani Das AIR 1921 All 270 (1) the Court considered the question of granting leave to appeal to His Majesty in Council against its order in an appeal arising out of a suit valued below. Rs. 10,000/-. There was another suit between the same parties. The question for determination in both the suits was the same, and the decision by the High Court in the appeal arising out of the suit valued below Rs.10,000/- was given after considering at the request of the parties evidence in both the suits.

An objection was taken that no permission to appeal should be given because there was no question of law involved and the value was below Rs 10,000/- and that Order XLV, Rule 4, C. P. C.,was not applicable. The contention was repelled and the following observation was made :

'An appeal is after all a proceeding in continuation of a suit. The value of the two suits in the Court of first instance as also of the proposed appeal to the Privy Council is above Rs. 10,000/-and this Court has reversed the decree of the court of first instance. The points raised in the two cases are identical, and we think that this is a proper case to which the procedure sanctioned by Order 45, Rule 4, should be applied and the parties given an opportunity of having one decision from the highest Court of Appeal. We therefore certify that this case fulfils the requirements of Section 110 C. P. C. read with order 45, Rule 4, as regards the nature and value of the subject matter of the suit.'

There was no discussion as to how the case came within the provisions of Order 45, Rule 4. It does not appear from the reported judgment whether the two suits had been decided by this Court by one judgment or by two judgments. This case therefore cannot be taken to be an authority against the view expressed by me.

9. In. Pethu Reddiar v. Rajambu Ammal , objection was taken before the Privy Council to the certificate granted by the High Court to these persons to appeal to His Majesty in Council. The suit out of which those appeals arose was instituted against 18 defendants and was for the setting aside of a power of attorney and 14 sale deeds. The trial court cancelled three sale deeds and the High Court on appeal cancelled the others.

Only three of the vendees desired to appeal to the Privy Council and obtained the necessary certificate from the High Court. In dealing with the objection to the propriety of the certificate granted by the High Court their Lordships of the Judicial Committee said at p. 98 :

'This was not the case of an appeal involving several appellants each of whom sued or was sued in respect of some distinct or unrelated cause of action, and it is unnecessary to consider the applicability of Section 110 to appeals of that kind. Here, the case of the respondent against each appellant and of each appellant against the respondent depended, in its substance, on the view taken of the evidence as a whole and turned on the same issue regarding the capacity of Somasundara. On the facts of this appeal there was, indeed, but one 'matter in dispute' unless the mere circumstance of a plurality of appellants decrees otherwise. On the true construction of the section their Lordships were unable to see any ground for such a refinement and they therefore overruled the preliminary objection.'

The writ petitions before us involved different petitioners, different respondents, different land, different leases granted in favour of the petitioners and different entries in the village papers in favour of the different respondents. The cause of action in each suit was different. The Privy Council did not decide that cases like the present writ petitions could not be consolidated, but the observations of their Lordships of the Judicial Committee make itclear that such cases are of a different kind from the cases which could be consolidated.

10. The cases relied on for the applicants are Jivangiri Guru v. Gajanan Narayan : AIR1927Bom19 , Vasi Reddi v. Secy. of State AIR 1932 Mad 125, Lakshminarasimhacharyulu v. M. Ratnam, AIR 1949 Mad 739 (FB), and Kishanlal Nandlal v. Vithal Nagayya, (S) AIR 1956 Nag 276.

11. In : AIR1927Bom19 , the admissibility of a document giving an option of repurchase was decided against the plaintiff who had brought two suits, one on the basis of the document executed in his own favour and the other on the basis of his being an heir of the person in whose favour a similar document had been executed. The trial court dismissed one suit on the ground that the document was inadmissible and the other suit on the ground that the plaintiff had failed to prove his heirship. On appeal the High Court held both the documents to be inadmissible and did not decide the question of heirship in one of the suits.

The applications for leave to appeal to the Privy Council were consolidated as the evidence in both the suits was taken in one suit and the parties agreed to treat that evidence as evidence in the other suit as well. The trial court referred to its findings in one suit in its judgment in the other suit. The question of heirship was not to be agi-tated before the Privy Council. It was held in these circumstances that the suits had been decided by the same judgment within the meaning of R 4, Order 45, C. P. C., and it was observed at p. 20 :

'So far as the question that will arise in the proposed appeal is concerned, it is quite clear that it was dealt with by each Court in one judgment, and that the judgment, in the other suit and the corresponding appeal merely refers to that other judgment and, adopting the reasons there given passes a decree accordingly.'

It may be mentioned that the question in dispute was considered to be of general importance and the case a fit one for appeal to His Majesty in Council. It is to be noticed that the point in dispute between the parties was decided by one judgment and was not separately decided in the different appeals. In the case before us one judgment delivered a day earlier was used as an authority for deciding the same legal question in the same way and thus for disposing of the appeal in the same manner.

In these circumstances it cannot be said that the later appeals were decided by the same judgment by which we decided the first appeal. If it could be possible to say so in the case of appeals decided at different times on the authority of an earlier decision, consolidation would be logically possible under Rule 4, Order 45, C. P. C., though on the face of it it would appear odd.

12. In the two Madras cases referred to above the High Court had decided several appeals by the same judgment and ordered the consolidation of the suits for purposes of valuation under Rule 4, Order 45, C. P. C. In the earlier Madras case the High Court observed at p. 126 :

'In a matter of this kind we think we should look to the spirit of the rule and not the letter. This is the view taken by the learned Judges of the Bombay High Court in : AIR1927Bom19 . I think that the judgments of the lower court must be regarded as the same judgment and thereforethe objection of the learned Government Pleader is disallowed. We are prepared to consolidate the value of the suits if it is of any use to the petitioner.'

With respect, we are of opinion that the identity of two separate judgments will not make them one and the same.

13. In the later Madras case the High Court decided various Letters Patent Appeals by a common judgment. In fact there was a common judgment in the second appeals and in the first appeals to the Subordinate Judge's court. In the trial court the suits were tried together and evidence was adduced only in one of the suits as evidence common to all the suits. The trial court delivered the judgment in the suit in which evidence was recorded and incorporated relevant extracts of the findings from that judgment in the judgments of the other suits. In these circumstances it was observed : 'In substance however it must be considered that the suits were all decided by the same judgment', and the observations in the former Madras case were approved.

14. In (S) AIR 1956 Nag 276, four petitions under Article 133 of the Constitution read with Sections 109 and 110, C. P. C. for leave to appeal to the Supreme Court were consolidated. The four appeals had been decided by four different judgments. It was observed during the course of the judgment :

'Though cases are to be found in the commentaries supporting the opposite contention, the trend of opinion now seems to be that if the judgments are substantially the same consolidation can be ordered.'

No reference to any decided case has been made in this connection. The only cases which have been referred to us being relevant to the question under determination are the three cases just now dealt with. It was further observed:

'In our opinion, this latter trend is in consonance with the grammatical meaning of the rule.'

The definition of the word 'judgment' in Sub-section (9) of Section 2 of the Code of Civil Procedure was substituted in Rule 4, Order 45, C. P. C. and the 'same judgment' was taken to mean 'same statement given by the Judge of the grounds of a decree or order'. It was then observed :

'When a Judge writes a single statement of the grounds and makes those grounds applicable to different decrees, it is, in our opinion, the 'same judgment' for the purposes of Rule 4 of Order 45 of the Code.'

Even according to this interpretation only those separate judgments would be deemed to be the same judgment when the reasons for the decision are mentioned in one judgment and the other judgments refer to those reasons and thereby make those reasons part of themselves. This interpretation will not apply to those judgments of the High Court where the judgment delivered in one case is taken as an authority for deciding the other, case -- of course when the points foe determination are just questions of law.

I may say, with respect, that the definition of the word 'judgment' in Sub-section (9) of Section 2 is to be applied for interpreting that, word in the Code when there be nothing repugnant in the subject or context, and it appears to us that to call separate judgments delivered at different 'times as the 'same judgment' -- if the rationale of one decision is the same as of the other -- does not appear to be consonant with the provisions of the two portions of Rule 4, Order 45, C. P. C. If separate judgments dealing with substantially the same questions will have to be considered as the 'same judgment' there will be little left of distinction in the two portions of this rule.

15. For the reasons stated above I am of opinion that these six writ petitions, arising out of six different suits on the basis of six different leases given to different persons and rival claims by six different sets of persons with respect to different holdings decided by six different judgments, cannot be said to have been decided by the same judgment and cannot therefore be consolidated for the purposes of valuation under Rule 4, Order 45, C. P. C. I would therefore reject this application.

Mootham, C.J.

16. I have had the advantage of reading the judgment prepared by my brother, and agree, substantially for the reasons stated by him, that this application must be dismissed. I should have been prepared to give a liberal construction to the provisions of Order XLV, Rule 4, were it not for the concluding words of that rule--'but suits decided by separate judgments shall not be consolidated, notwithstanding that they involve substantially the same question for determination.' The use of these words seems to me to show that it was the intention of the legislature in enacting Section 4 that only those suits which are decided by the same, that is by one, judgment should be capable of consolidation.


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