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Bhagvan Gokul Ji and Co. Vs. Balku Babaji - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberFirst Appeal No. 390 of 1927
Judge
Reported inAIR1932Bom1; (1931)33BOMLR1291; 136Ind.Cas.497
AppellantBhagvan Gokul Ji and Co.
RespondentBalku Babaji
DispositionAppeal dismissed
Excerpt:
.....heading to order i is 'parties to suits' and that the heading in order ii is 'frame of suit'.but, unless we are going to disagree with a large number of english cases and also cases in this country, we are bound to hold that order i, rule 3, applies to joinder of causes of action as well as to joinder of parties. 164 and i think the reasoning in those two cases clearly covers this case. as a general rule the subordinate judge ought not to dismiss an action on a preliminary issue, but ought to try the preliminary issue and then try out the other issues as well. of course, there may be exceptional cases when the preliminary point seems clear and the record is a very heavy one and the trial of the other issues would take a long time. 1 has failed on that point i think we should make no..........the same series of transactions, he says that the case against respondent no, 1 arises under the sale agreement and the case against respondent no. 2 arises under the deed of dissolution, but that point is covered by the english case to which i have referred in payne v. british time recorder co, in that case the plaintiff had entered into a contract with b. & co. to supply them with certain printed cards which were to conform to certain specimens supplied to them and in order to carry out that contract the plaintiff entered into another contract with w &. co. for the supply of the cards. w. & co. sent the cards direct to b. & co., and b. & co. refused to accept them on the ground that they were not in accordance with samples. the plaintiff brought an action against b. & co. for the.....
Judgment:

Beaumont, C.J.

1. This is an appeal from a decision of the Sub-ordinate Judge of Thana. At the trial the learned Judge framed the first issue in these terms--

Is the suit bad for misjoinder of causes of action against different persona?

and he answered that issue in the affirmative and dismissed the action without considering the merits.

2. In dealing with the preliminary issue, one must, of course, assume that the facts stated in the plaint are correct and see whether on that basis the plaintiff has a cause of action.

3. Now, the material facts are these--

The plaintiffs and respondent No. 2 were partners at the material dates. There were other persons also in the partnership, but that is immaterial. Defendant No, 2 was the managing partner, and on June 2, 1924, he agree 1 on behalf of the firm to sell certain land belonging to the firm to respondent No. 1 and he entered the transaction in the books of the firm as being a contract to sell these lands to respondent No. 1 for Rs. 9,000. The actual agreement for sale made between respondent No. 2 and respondent No. 1 was for a sale of the land at Rs. 5,000, and not Rs. 9,000. In January 1925 there was a dissolution of the firm between the plaintiffs and respondent No. 2 and the other partners. The terms of the dissolution were embodied in a deed and the effect of the dissolution was that the plaintiffs took over the whole of the partnership assets, the accounts were to be taken as correct, and if it was found that any entry in the accounts was wrong, the partner in default was to make good the loss to the plaintiffs. In that state of the facts, on February 2, 1926, this suit was commenced against respondent No. 1 and respondent No. 2; and what the plaintiffs claimed was this. They claimed, first of all, specific performance of the agreement for sale. They stated in their plaint that they did not know what terms respondent No. 2 had actually made for the sale of the land. If the sale-price was Rs. 9,000 then they claimed specific performance against respondent No. 1 and on that basis payment to the plaintiffs of the balance of Rs. 9,000. If, on the other hand, the agreement was for a sale for Rs. 5,000 then they claimed against respondent No. 1 specific performance on that basis and as against respondent No. 2 the balance of Rs. 4,000 under what is really the contract of indemnity against mistakes in the accounts contained in the deed of dissolution.

4. The learned Judge held that those two causes of action could not be joined. He said that the transactions were unconnected with each other and that there was no common question of fact or law. It seems to me obvious that there was a common question of fact, viz., what were the terms of the contract of sale,

5. Now, the plaintiffs' case is that the action is well constituted having regard to the terms of Order I, Rule 3. That rule provides:-

All persons may be joined at defendants against whom any right to relief in respect of or arising out of the game act or transaction or series of act or transactions is alleged to exist, whether jointly, severally or in the alternative, whore if separate suits were brought against such persons any common question of law or fact) would arise.

6. It seems to me that this case plainly falls within the words of that rule. There is a series of transactions contained in the agreement for sale and the deed of dissolution and there is a common question of fact, viz., what were the terms of the agreement for sale. That being so, the learned Judge was wrong in dismissing the action on the preliminary point.

7. Mr. Thakor, on behalf of respondent No. 2, has argued that Order I, Rule 3, must be read in conjunction with Order II, Rule 3. Order II, Rule 3, says:-

Save as otherwise provided, a plaintiff may unite in the same suit several causes of action against the same defendant, or the same defendants jointly;...

8. And Mr. Thakor says, no doubt with truth, that the cause of action against the defendants here is not, in any sense, joint, Mr. Thakor points out that the heading to Order I is 'Parties to Suits' and that the heading in Order II is 'Frame of Suit'. But, unless we are going to disagree with a large number of English cases and also cases in this country, we are bound to hold that Order I, Rule 3, applies to joinder of causes of action as well as to joinder of parties. Questions relating to the history and application of these rules and the corresponding rules of the' Supreme Court in England were considered at length by the English Court of Appeal in the case of Payne v, British Time Recorder Co. [1921] 2 K.B. 1 and by the Court of Appeal in Calcutta in Harendra Nath Singha Ray v. Purna Chandra Goswami I.L.R. (1927) Cal. 164 and I think the reasoning in those two cases clearly covers this case.

9. Mr. Thakor has further contended that in this case the cause of action does not arise under the same transaction, or the same series of transactions, He says that the case against respondent No, 1 arises under the sale agreement and the case against respondent No. 2 arises under the deed of dissolution, but that point is covered by the English case to which I have referred in Payne v. British Time Recorder Co, In that case the plaintiff had entered into a contract with B. & Co. to supply them with certain printed cards which were to conform to certain specimens supplied to them and in order to carry out that contract the plaintiff entered into another contract with W &. Co. for the supply of the cards. W. & Co. sent the cards direct to B. & Co., and B. & Co. refused to accept them on the ground that they were not in accordance with samples. The plaintiff brought an action against B. & Co. for the price of the cards, and against W. & Co, claiming that if the cards supplied to B. & Co. were not in accordance with sample then he was entitled to damages against W. & Co. So that, in that case, as in this, the causes of action against the two parties were totally distinct and arose under different contracts, but the Court of Appeal held that the two causes of action could be joined in one action. It is quite true that the wording in the English rule is not identical with the wording of the rule we have to deal with, but, in my opinion, the wording of Order I, Rule 3, in this country is much more favourable for the plaintiffs than the wording of the English rule, Order XVI, Rule 4.

10. In my opinion, therefore, the learned Judge was . wrong and 'this action must go back to be tried.

11. I desire to say that I think the learned Judge adopted an extremely inconvenient course in this case. As a general rule the Subordinate Judge ought not to dismiss an action on a preliminary issue, but ought to try the preliminary issue and then try out the other issues as well. Of course, there may be exceptional cases when the preliminary point seems clear and the record is a very heavy one and the trial of the other issues would take a long time. In such a case it may be desirable to dismiss the action on the preliminary issue, but no such consideration as that arises in this case. The trial of the action on the merits would not have taken more than a few hours. The result of the course which the learned Judge adopted is that the unfortunate parties have to wait for four years in order to get the preliminary point disposed of and now they will have to go back to the trial Court in order to have the issues tried. I think the appeal must be allowed. Respondent No. 2, who took the preliminary point, must pay the plaintiff's costs of the appeal. Respondent No. 1 was not interested in the preliminary point and did not take it originally, but he has argued in this Court that we ought to exercise our discretion under Order II, Rule 6, directing that the issues against the two parties should be tried separately. I gee no reason whatever for exercising our discretion in that way and as respondent No. 1 has failed on that point I think we should make no order as to his costs.

Murphy, J.

1. The real dispute on the statements in the plaint is about a sum of Rs. 9,000 the sale-price of some land, Defendant No. 1, who agreed to buy from defendant No. 2, who then represented plaintiff's firm, contends that the price settled was Rs. 5,000 only, and the reason for joining the two defendants was that plaintiffs considered that if they could not recover more than Rs. 5,000 from defendant No. 1 they had the right to recover the difference from defendant No. 2, in the terms of the agreement on the dissolution of the partnership. Under Order I, Rule 3, the bond which justifies joining several defendants is, that the relief sought is one arising out of the same act or transaction, or series of transactions, jointly, severally or alternatively, involving a common question of fact or law had separate suits been brought. I agree that the relief here is sought in respect of the consideration of the agreement to sell, and whether it was for Rs. 5,000 or Rs. 9,000 is a question common to the case against both the defendants, and this seems to me sufficient to bring the case within the rule, and the finding that the suit is bad for multifariousness appears to me on the facts to have been a mistaken one. I agree that the decree should be set aside as proposed by the learned Chief Justice.

2. Costs of the trial will have to be dealt with by the trial Court.


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