Stereo. H C J D A 38.

JUDGMENT SHEET
IN THE LAHORE HIGH COURT
MULTAN BENCH MULTAN
JUDICIAL DEPARTMENT

Civil Revision No.884 of 2021

Doud Khan Vs. Muhammad Rashid, etc.

JUDGMENT

Date of Hearing: 20.01.2022

Petitioner by: Mr. Muhammad Qadir Asif Toor,
Advocate.
Respondent No.1 by: Muhammad Ali Siddiqui, Advocate.

Anwaar Hussain, J. 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withdrawn and entrusted for adjudication to the court of learned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
Civil Revision No.884 of 2021 2

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
Civil Revision No.884 of 2021 3

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.
Civil Revision No.884 of 2021 4

(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
Civil Revision No.884 of 2021 5

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
Civil Revision No.884 of 2021 6

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."
Civil Revision No.884 of 2021 7

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 this case.”
Civil Revision No.884 of 2021 8

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
Civil Revision No.884 of 2021 9

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
Civil Revision No.884 of 2021 10

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.

(ANWAAR HUSSAIN)
Judge

Approved for reporting

Judge
Maqsood