Alfred Henry Lionel Leach, C.J.
1. We have before us two applications for certificates permitting appeals to His Majesty in Council and for an order consolidating the two appeals. The appeals were heard together and dealt with in one judgment. In the trial Court the suits were tried together, but there were separate judgments. The first suit was O.S. No. 56 of 1933 of the
2. Court of the Subordinate Judge, Salem, and was filed by the second respondent for the dissolution of a partnership with the petitioner and the taking of the partnership accounts. He valued his relief at Rs. 6,000. The petitioner denied that the partnership ever existed. The second suit was O.S. No. 57 of 1933 of the Court of the Subordinate Judge, Salem, and was filed by the petitioner against both respondents. The first respondent is the father of the second respondent. In this suit the petitioner alleged that he had paid to the respondents various sums of money with the direction that they should be paid to one Raja Hanumappa Chetti in discharge of his indebtedness to him. The petitioner said that the monies had not been paid over to his creditor according to his direction and that he had been compelled to pay twice over. On this footing the petitioner asked for a decree for Rs. 6,436-5-0 against the first respondent and a decree for Rs. 802-8-0 against the second respondent. The suits were entirely different, but there was a common question, namely, whether there had been a settlement of matters in dispute between the petitioner and the respondent. It was said that the disputes had been settled by a third party and that the terms of the settlement had been embodied in a letter marked as Ex. C. The Subordinate Judge held that there had been no settlement and dismissed the second respondent's suit, but in the petitioner's suit he found for the petitioner and granted him a decree for Rs. 7,924-4-4. The second respondent appealed to this Court in Appeal No. 275 of 1934 against the dismissal of his suit and both the respondents appealed in Appeal No. 288 of 1934 against the decree granted to the petitioner.
3. The judgment of this Court recognised that all the questions were not common to the two suits but allowed both the appeals on the ground that a settlement had in fact been arrived at. The petitioner contends that in these circumstances he is entitled to certificates permitting appeals to His Majesty in Council and an order consolidating the two appeals. Order 45, Rule 4 of the Code of Civil Procedure states that 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 questions for determination. Totalling the values placed on the respective claims the suits, if consolidated, would comply with the condition with regard to value, but this does not mean that the petitioner is entitled to certificates permitting him to appeal to the Privy Council. Order 45, Rule 4 requires that the questions for determination in both suits shall substantially be the same. Now there is one common question, namely, the question with regard to the settlement, but there are other questions which are not common and if the question with regard to the settlement is answered in the way that it was answered by the Subordinate Judge it would involve the decision of the questions which are not common. The fact that there is a common question does not entitle a petitioner to an order for consolidation when there are other questions which are not common. The basis of an order for consolidation must be that the two suits involve substantially the same questions. This is not the position here. Moreover, the rule says that suits 'may' be consolidated. It does not say that they shall be consolidated. Therefore the Court is not bound to grant an order for consolidation. But apart from the question of discretion the present cases do not come within the rule, and this decides the matter.
4. The applications will be dismissed with costs in the first application (No. 5512 of 1938).
5. Memorandum of costs will follow.