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Judgment
James, J.—The plaintiff in the litigation out of which these applications arise was formerly District Engineer under the Gaya District Board from which past he was dismissed in 1930. The Special Officer in charge of the District Board drew up at least three charges against the District Engineer, one of which was of fraud on the Board in connection with the sale of some Manila rope ostensibly purchased from Abdul Ghani. In the departmental proceedings this Abdul Gani appears to have made statements supporting the charge and inculpating the District Engineer. The late District Engineer has now instituted two suits at Gaya.
In the first suit he claims from the Special Officer and the District Board damages for wrongful dismissal and for libel. In the second suit he claims from Abdul Ghani damages for libel. At the instance of Abdul Ghani the two suits were consolidated without notice to the Special Officer or to the District Board, who protested when they learnt what had happened; but the learned Subordinate Judge found that the balance of convenience lay in trying the two suits together and declined to rescind his order of consolidation. The District Board and the Special Officer have now applied for revision of that order.
On behalf of the petitioners it is argued that there is no sufficient unity or similarity in the matters in issue in the two suits to warrant their consolidation against the wishes of every party except Abdul Ghani, since neither the plaintiff, nor the District Board nor the Special. Officer consent to the consolidation. The two suits have this in common, that it may be necessary in each suit to consider evidence affecting the transaction regarding the Manila rope, though it does not appear that, even on this issue the position of the defendants in the two suits is exactly the same. Abdul Ghani has no concern with the other issues in the suit against the District Board.
Learned Counsel for the petitioners cites in his favour the decision in Kali Charan Dutt v. Monodabala Dasi [1912] 15 IC 897. Sir Ali Imam argues that the balance of convenience is on the side of consolidation and that the learned Subordinate, Judge has inherent power to direct consolidation of trials where he finds it convenient to do so, with which the High Court will not interfere in revision.
The decision in Kali Charan Dutt''s case [1912] 15 IC 897 is based to some extent on the decision in Lee v. Arthur [1908] 100 LT 61, from which, as Mr. Khurshaid Husnain pointed out after the conclusion of arguments, the Court of appeal dissented in Harwood v. Stalesman Publishing Company Ltd. [1929] 141 LT 54.
In the latter case Lord Justice Sankey remarked that Lee v. Arthur [1908] 100 LT 61 could not be properly treated as authority for the rule that there can be no consolidation without consent of parties unless the issues to be tried are precisely similar. It is true that Lee v. Arthur [1908] 100 LT 61 is cited in Kali Charan Dutt v. Mano-dabala Dasi [1912] 15 IC 897 as authority for a rule that the issues in both the suits must be precisely the same; but learned Counsel for the petitioners did not cite that decision as authority for such a proposition recognising that it can never happen, (or practically never) that in two separate suits against different parties, all the issues are precisely the same. He cited the decision as authority for saying that in a proper case the High Court will interfere in revision with an order for consolidation made against the wishes of one or more of the parties, which is a different matter, and for which Kali Charan Dutt v. Mano-dabala Dasi [1912] 15 IC 897 does afford authority. In the present case it appears that out of twenty-two witnesses summoned on behalf of the defendants in the suits only two are common to both; and though Sir Ali Imam argues that there will be documents bearing on the matter of the sale of the Manila rope which will be common to both the suits it does not appear that the fact that the determination of whether this purchase was made in good faith or not by the District Engineer on behalf of the District Board may have to be determined in each of the two suits affords such a general similarity of issues as to warrant consolidation against the wishes of the parties.
Abdul Ghani has no concern with the other issues in the suit against the District Board.
It would appear that the Subordinate Judge has acted with material irregularity in the exercise of his jurisdiction by ordering consolidation, against the will of practically all the parties, in two cases which have so little in common. It would be indeed most improper to force upon the District Board and the Special Officer, in conducting their litigation, association with a partner such as Abdul Ghani, with whom they do not desire to be associated; and I do not consider that such an order can be regarded as a proper exercise of the inherent power to consolidate suits.
The order consolidating the suits will accordingly be set asid e; and the trial will proceed separately. The applications are allowed with costs: hearing fee one gold mohur in each case.