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Umed Dholchand Vs. Pir Saheb Jiva Miya and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Judge
Reported in(1883)ILR7Bom134
AppellantUmed Dholchand
RespondentPir Saheb Jiva Miya and ors.
Excerpt:
cause of action - multiplicity of suits--dividing cause of action--the code of civil procedure, xiv of 1882, section 43--presidency small cause court act, ix of 1850, section 34. - indian succession act (39 of 1925), section 63: [s.b. sinha & cyriac joseph, jj] will validity - deceased, was a very wealthy person - he floated several companies - he left behind his daughters, s and j - he was suffering from various diseases including some neurological ones - for his treatment, he used to frequently visit united states of america accompanied by his wife and daughter - by reason of a will, he is said to have bequeathed 50% of his property to s and 50% to j in a letter addressed to the 1st respondent, viz., s, he is purported to have recorded that the he had given all his shares to her -..........court of ahmedabad is, whether it was incumbent on the plaintiff to unite the claims on the two bonds in the same suit. section 43 of the civil procedure code requires that 'every suit shall include the whole of the claim which the plaintiff is entitled to in respect of the same cause of action.' there can be no doubt that the two bonds and the default in payment of them constitute, in any view of the expression 'cause of action', two distinct causes of action, and there is nothing, we think, in the language of the section (which would appear to have been mainly designed to discourage multiplicity of suits) which would justify the court in going behind the bonds to consider the circumstances out of which they sprung, albeit those circumstances might themselves at the time have.....
Judgment:

Charles Sargent, Kt., C.J.

1. The question referred to us by the Judge of the Small Cause Court of Ahmedabad is, whether it was incumbent on the plaintiff to unite the claims on the two bonds in the same suit. Section 43 of the Civil Procedure Code requires that 'every suit shall include the whole of the claim which the plaintiff is entitled to in respect of the same cause of action.' There can be no doubt that the two bonds and the default in payment of them constitute, in any view of the expression 'cause of action', two distinct causes of action, and there is nothing, we think, in the language of the Section (which would appear to have been mainly designed to discourage multiplicity of suits) which would justify the Court in going behind the bonds to consider the circumstances out of which they sprung, albeit those circumstances might themselves at the time have constituted a cause of action. A case of two promissory notes passed under similar circumstances to the present bond, and decided by the Small Cause Court of Calcutta against the plaintiff, has been referred to; but it is to be remarked that the language of the above section is very different from that of Section 34 of the Presidency Small Cause Court Act of 1850 on which the Court doubtless acted, and which is not found in the Mofussil Small Cause Courts' Act. That section forbids a 'plaintiff's dividing any cause of action for the sake of bringing two or more suits in those Courts,' and might possibly enable the Court to regard what was done in that case at the time of passing, the notes as a violation of that section. The question must, therefore, be answered in the negative.


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