Sindurani Choudhury and Others vs The State of Assam

Sarjoo Prosad, C.J.—These applications are for consolidation of the above Supreme Court appeals Nos. 9, 10, 11, 12, 13, 14 and 15 of 1952 which arise out of the same judgment of this Court and involve a common question for consideration, namely, whether the amount received by the Petitioners as ''salami'' for settlement of agricultural holding was agricultural income within the meaning of Section 2(a)(1) of the Assam Agricultural Income Tax Act or it was merely a capital receipt. By our order dated 18-6-53 we certified that the cases were fit for appeal to the Supreme Court. The Appellants now submit that under Rule 6, Order XII of the Supreme Court Rules, 1950 or under the inherent jurisdiction of the Court, these appeals should be consolidated and an appropriate order for security of costs according to the justice of the case may be passed.

Rule 6, Order XII provides that when there are two or more appeals arising out of the same matter, and the High Court is of the opinion that it would be for the convenience of this Court and all parties concerned that the appeals should be consolidated, the High Court may direct the appeals to be consolidated and make such order for security of costs as the justice of the case requires. According to the submission of Mr. Ghose who appears for the Appellants, the words "arising out of the same matter" would cover a case of this kind. He points out that all these appeals relate to the same judgment of this Court and the matter in dispute is common. Therefore, the denotation of the words should ordinarily cover a case of this character. There is undoubtedly force in the contention and if the matter were entirely ''res integra'', I would have been inclined to take the view that, on its own force. Rule 6, Order XII, of the Supreme Court Rules. 1950 applies to these cases. I am, however, conscious of the fact that in a previous decision of this Court in-- Jitendra Narayan Deb and Others Vs. State of Assam, to which my learned brother was a party, some doubt was thrown on the matter.

Ram Labhaya, Acting Chief Justice as he then was, observed under similar circumstances, that although it was possible to take the view that Order XII, Rule 6 applied, still, they were not persuaded to hold that the word ''matter'' in Rule 6, Order XII had been used in that sense, so as to cover appeals relating to different cases, though governed by the same judgment and involving common questions for determination. The learned Judge observed--"It seems that the word ''matter'' has been used in the sense of a cause or suit or appeal." Having regard to the doubt expressed in that decision, I do not consider it necessary for the present to resolve it, but to adopt the procedure which was adopted by the learned Judges in that case, namely, to consolidate the appeals under the inherent jurisdiction of the Court.

On behalf of the Department, Mr. Barua has objected to the consolidation. He has submitted that there is no inherent jurisdiction in the Court to direct consolidation of the appeals which are to go to the Supreme Court and are no longer pending before this Court. He relies in particular upon a decision of the Allahabad High Court in- Mukandi Lal and Others Vs. Hashmat-un-nissa and Others, . This decision was not accepted by this Court in the matter to which I have referred and this Court chose to rely upon a decision of the Patna High Court in--''Har Prasad Rai v. Brij Kishen Das'' AIR 1918 Pat 196 (C). It may also be observed that the cases relied on by Mr. Barua depended merely on the interpretation of Order 45, Rule 4 or Rule 7, CPC and had no specific bearing on the interpretation of Rule 6, Order XII of the Supreme Court Rules. Those rules in CPC evidently conferred no powers of consolidation for the purposes mentioned in Rule 6 of the Supreme Court Rules.

The Appellants have also drawn our attention to a Full Bench decision of the Madras High Court in--''Molugu Lakshminarasimhacharyalu v. M. Ratnam'' AIR 1949 Mad 739 (D), where their Lordships did not approve of the decision on which Mr. Barua has relied. In that case the learned Judges took the view that once a case has been consolidated under Order 45, Rule 4, CPC for the purposes of pecuniary jurisdiction, it must be assumed that there is one consolidated appeal and although Rule 7 of Order 45 of the Code may not in specific terms provide for payment of consolidated securities or costs, yet because in substance, there is only one appeal in a consolidated form therefore, one set of security and printing cost should be demanded, unless the exigencies of the case requires that the order should be otherwise.

Rule 7 of Order 45, CPC gave ample scope for such an order because the Rule enacted that unless otherwise ordered the security to be furnished should be Rs.4.000/- in cash or in Government securities of the like amount. Mr. Barua contends that here there is no question of any consolidation under Rule 4. Order 45 CPC on the point of pecuniary valuation of the subject-matter of appeal and, therefore, the reasonings of the Full Bench decision have no application to this case. The Pull Bench decision is at any rate important to indicate that the cases relied upon by the learned Counsel were not considered to be good law. Order XII, Rule 6 of the Supreme Court Rules not only provides for consolidation but also enables the Court to "make such order for security of costs as the justice of the case requires". It is therefore wide in its amplitude.

As I have said, even if the Rule aforesaid is not pressed in aid, under the inherent powers of the Court, we could give directions in terms of the Rule in regard to consolidation and security for costs. It cannot be said that so long as the Supreme Court appeals are before us and the records have not actually been transmitted to the Supreme Court, after the admission of the appeals, we have no season over these cases and therefore would have no jurisdiction to pass any order that we consider right or proper in the interest of justice and for the convenience of the Court and the parties concerned. We therefore direct that the appeals should be consolidated and in regard to security of costs, a sum of Rs.6000/- should be deposited by the Appellants. The applications are accordingly allowed. In view of the opposition offered by the Respondent, they are liable to pay the costs of these applications. Hearing fee five gold mohurs in all.

Deka J.

I agree.