1. The appellant, Mr. Ahmedbhai Habibbhai, a well-known wealthy Khoja merchant of Bombay, in January 1907 entered into a contract to sell a very valuable property situate at Mount Pleasant Road, Malabar Hill, to the late Mrs. Awabai Fraraji Petit. The offer and acceptance resulting in the contract of sale of this property, is evidenced by two letters, respectively dated the 31st of January and the 1st of February 1907. By his letter Mr. Ahmedbhai agrees to make out a good title to the property free from all incurabrances and claims whatsoever, and the sale was to be completed within two months from the date of the offer. A formal preliminary agreement containing the terms of this contract was within the contemplation of the parties, and a draft of the contemplated agreement was prepared by Bai Awabai's solicitors, but, for reasons not necessary to discuss, the same was not executed. There is no difference between the parties as to the terms of the contract arrived at between them. The material term, for the purposes of this litigation to consider, is more fully set out in Clause 3 of the draft agreement, which provides: 'That the vendor will clear at his own expense, all incumbrances and claims on the said property and will otherwise make out a good title thereto free from all reasonable doubts, claims and demands.'
2. The appellant is a Khoja and is admittedly governed by Hindu Law in matters of succession and inheritance. At the date of the contract, there were existing and are now existing two sons, two grand-sons and one great-grand-son of the appellant, and it is not disputed that if the property, the subject-matter of the sale, was ancestral in the hands of Ahmedbhai, his male issue would have an interest therein.
3. After the contract for the sale of this property was made, there ensued certain correspondence between the solicitors of Bai Awabai and Mr. Ahmedbhai. For the purposes of this appeal, it is not necessary to refer to the correspondence previous to the 29th of July 1907, on which date Bai Awabai's solicitors wrote to the solicitors of the vendor, specifically stating that his sons and remoter male issue had on birth acquired an interest in the property ; that some of them were making a claim to the property and were objecting to the alienation thereof; that one of them Mr. Hoosenbhai had actually made a claim to one of Bai Awabai's solicitors himself and under the circumstances they called upon Mr. Ahmedbhai to obtain the concurrence and consent of all persons, who would be entitled to an interest in the property on the footing that it was ancestral in his hands. They stated that they did not consider that a good title free from all claims could be made out till their requisition was complied with.
4. On the 31st of July, 1907, the vendor's solicitors replied to this letter, and, without entering into any discussion on the merits of the objection raised, they content themselves by saying that their client considered that the reasons for not accepting his title were groundless.
5. After some further correspondence, the appellant, on the 25th of September 1907, filed a suit against Bai Awabai for specific performance of the contract of sale contained in the two letters marked Exs. A and B in the suit. This suit, as originally filed, was a simple suit filed by the vendor against the purchaser for enforcing specific performance of the contract and was framed on the basis that the vendor had performed his part of the contract, and was ready and willing and able to carry out and complete all the terms of the contract, but that the purchaser had wrongfully refused to complete, and prayed for the usual relief's in a suit of this nature.
6. Bai Awabai was, at the date of the institution of this suit, very seriously ill and although the appellant's solicitors wrote on the 27th of September 1907, giving notice of the filing of the suit to Bai Awabai's solicitors and asking them if they would accept service of summons, no summons was served during this lady's life-time. Bai Awabai died on the 4th October 1907 and it became necessary to amend the plaint by bringing on the record Bai Awabai's son and daughter, who were appointed executor and executrix under her will. About this time the appellant seems to have been advised that it was necessary that his male issue consisting of his sons, grand-sons and great-grand-son should be made parties to this suit. In his affidavit, affirmed on the 18th of January 1908, in support of his application for amendment of the plaint, he states as follows:--
Having regard to the contentions raised on behalf of the said Bai Awabai, that my sons, grand-sons, and great-grand-son are interested in the property, the subject-matter of this suit, jointly with me, which contentions I do not admit and as they are interested to deny title to the premises aforesaid and in order that the objection of the said Bai Awabai to my title may be removed and that Bai Awabai and her estate may be completely protected by the decree for specific performance prayed for, I am advised that they are necessary parties to this suit, though, as I believe, my male issue do not deny that the said premises are my absolute property and are self-acquired by me and that being so, I seek no relief against them or any of them. But should they or any of them set up any claim against the said premises, I pray that my sole and absolute rights to the said premises may be declared and given effect to It is necessary to add as party to this suit my sons Kasambhai Ahmedbhai, and Hoosenbhai Ahmedbhai, my grand-sons Khan Mahomed Kasambhai and Mahomedbhai Hoosenbhai and my great-grand-son Abdul Hamid Habibhoy.
7. On the strength of this affidavit, the appellant applied to the Prothonotary for an order to substitute Sir Dinshaw and Bai Hamabai, the executor and executrix of Bai Awabai's will, in her place and to add the names of his sons, grand-sons and great-grand-son as party defendants and to make all necessary and consequential alterations and amendments in the title and body of the plaint. The summons not having been served, the application for amendment was made ex parte and was granted by the Prothonotary. The plaint was subsequently amended in the manner indicated in the appellant's affidavit and the executor-respondents were served with a summons on the 19th of February 1908. (See Ex. D72). The first and second respondents, however, before being served with the summons, on the 14th of January 1908, by their solicitors' letters of that date, gave a formal notice of rescission of the contract, both on the grounds that the vendor had only a limited interest in the property and that he had refused to comply with the purchaser's requisitions.
8. Subsequent to the service of the summons, the executor-respondents put in a written statement denying the right of the appellant to enforce the contract against them, mainly on the ground that he had failed to make out a good title to the property by removing or clearing the claims of his male issue. They submit that the appellant 'had no right to drag them as parties to what would be a long and expensive litigation between the plaintiff and the other defendants or some of them' and they add that they 'could not be expected in any event to wait for the completion of the sale of the said land until such litigation is over.'
9. The third defendant Cassambhai, at the very threshold of his written statement, objects to the constitution of the suit and says that if the plaint disclosed any cause of action against him, the same was a different cause of action to that disclosed against defendants 1 and 2, and that the plaintiff had misjoined causes of action and that he should be put to his election or his suit should be dismissed. As to his claim to the property, he says that he contended then, as he had always contended, and the plaintiff well knew that the property in question was ancestral in his hands and that he, Cassambhai, was entitled to an interest therein, He ends by submitting that his father had no power to sell anything more than the interest which he would have on partition of the said ancestral property. The appellant's other son, his two grand-sons and his great-grand-son, who were defendants 4, 5, 6 and 7, put in , a joint written statement. They say, in the first instance, that the property in the plaint referred to was ancestral, that the plaintiff had no right to sell the same except for necessity, that no necessity had arisen, and that they object to the sale of such property by him. They raise no objection to the constitution of the suit but on the contrary counter-claim against the plaintiff, a declaration that the property, the subject-matter of the suit, was joint family property, and they pray for an injunction restraining the plaintiff from alienating the same or any part thereof.
10. With these pleadings and under the circumstances set out above, the suit came on for hearing before Mr. Justice Beaman in the lower Court, who, after a very patient and protracted hearing, dismissed the whole suit. Against this dismissal, the plaintiff has appealed, and to this appeal all the defendants, brought on the record by virtue of the order of amendment of the 27th of January 1907, are respondents. At the first hearing in the Court below, issues were raised as framed by Mr. Raikes, who appeared with the Advocate-General and Mr. Lowndes for the first two defendants and who also appeared with the late Mr. Padshah, for defendants 3 to 7. The first ten issues were raised on behalf of the executor-defendants and the next three issues were raised on behalf of defendants 3 to 7. Mr. Inverarity for the plaintiff raised issues Nos. 14, 15 and 16 and Mr. Raikes then raised an additional issue questioning whether issue 15 arose on the pleadings as against defendants 3 to 7. At a later stage of the hearing of the suit, another issue was raised by Mr. Raikes.
11. It will be noticed that amongst the issues raised in the suit, no issue whatever was framed with reference to the point of misjoinder of causes of action and of parties. The point is taken, though not very clearly and specifically, in para 9 of the written statement of the first two defendants, but it is very clearly and very explicitly taken in the third defendant Cassambhai's written statement. The learned Judge, in the course of his judgment, complains that for a long time he was not able to grasp the exact situation, and he thinks that the. omission to raise the point of misjoinder and to insist on its adjudication at the very outset of the hearing was probably due to the fact that the same learned Counsel, who led for both sets of defendants, continued to be in conduct of the suit throughout till about the very last stages of the hearing before him when Mr. Lowndes came in to reply on behalf of the first two defendants.
12. This surmise of the learned Judge below seems not to be correct, because, at the hearing before us, both Messrs. Raikes and Lowndes, who appeared on behalf of the two sets of defendants, assured us that they had in consultation considered the advisability or otherwise of raising the point of misjoinder by a specific issue. They say that after consideration they came to the conclusion that it would be inadvisable to raise such an issue or to press the adjudication of the question of misjoinder of causes of action and of parties as a preliminary objection. They say they considered that the objection to the framing of this suit was one of principle and not merely of procedure and that their objection to the constitution of the suit was on-higher ground and based on a rule of equity rather than on the mere technical ground of procedure.
13. The learned Judge, however, in the course of his judgment has expressed his conviction on this question in strong and unequivocal language and held that this was a very clear case of misjoinder of parties and of causes of action and that Mr. Ahmedbhai's male issue ought to have had no place whatever in the suit for specific performance against the executor and executrix of Bai Awabai.
14. I think it is desirable to discuss this question, however, after we have dealt with issue No. 14 which was dealt with by the learned Judge below as a preliminary issue and decided at the outset of the hearing. Issue 14, raised by Mr. Inverarity, is whether issues 11 and 12 are not res judicata. Issue 11 is, whether the premises in the plaint referred to are the self-acquired property of the plaintiff, and issue 12 is, whether defendants 3 to 7 have no interest therein as alleged in the plaint.
15. Mr. Inverarity for Mr. Ahmedbhai contended in the Court below and contended before us that the question as to whether the property in the hands of Mr. Ahmedbhai is ancestral or self-acquired and whether the sons, grand-sons and great-grandson have any interest whatever in such property, are questions which have been heard and finally determined by a Court of competent jurisdiction and are now res judicata. He maintained that Ahmedbhai's issue, by reason of previous litigation, are now stopped from raising the same questions again. I think it is desirable to dispose of this contention in the first instance, because if Mr. Inveracity's contentions are correct the first and second defendants would be bound to accept Ahmedbhai's title as a good title and he would be entitled to succeed against them in this suit.
16. On this question, a very large number of authorities have been cited before us. It seems to me, after having looked at the cases to which our attention was drawn by the learned Counsel at the bar during the argument of the appeal, that after all the question as to whether certain matters are or are not res jndicata between certain parties is a question which depends mainly upon the facts and circumstances surrounding each particular case. The cases cited help us merely to bring before our minds certain principles on which the Courts should act, when deciding whether certain questions have or have not been heard and finally determined between certain parties so as to be a bar to further litigation of the same questions between the same parties or parties claiming under them.
17. The question for our determination is, whether the disputes between Ahmedbhai and his male issue as to whether the property in his possession is ancestral and is such property in which his male issue took an interest by birth or whether it is his self-acquired property over which he has absolute dominion and power of disposition, have been finally heard and decided by a Court of competent jurisdiction, so as to preclude any one of defendants 3 to 7 from raising the same over again in this suit. The plea of res judicata is founded on certain litigation which took place between Ahmedbhai and his two sons, Cassambhai and Hoosenbhai in Suit No. 382 of 1884 and the appeal therein reported in Cassumbhoy Ahmedbhoy v. Ahmedbhoy Hubibhoy ILR(1887) 12 Bom. 280 and Ahmedbhoy v. Cassumbhoy ILR (1889) 13 Bom. 534. That was a suit filed by the third defendant Cassambhai against his father and his brother Hoosenbhai, who was then a minor, praying, amongst other things, for a partition of the property in the possession of Mr., Ahmedbhai and for certain other relief's. The suit filed in 1884 came on for hearing before Mr. Justice Jardine in November 1887. The two main questions in that suit were, whether the property in the hands of Mr. Ahmedbhai was ancestral property and as such belonging to the joint family and whether, if so, the son can, during his father's life time, claim a partition of that property against the wishes of the father. In a very elaborate judgment Mr. Justice Jardine decided both the questions in favour of Cassambhai. He held that the property in the hands of Ahmedbhai was ancestral property, that the plaintiff Cassambhai at birth became a co-parcener in the said property with an interest therein similar to that of a son in a family governed by the ordinary Hindu Law, and further held that the plaintiff Cassambhai was entitled to claim a partition. The Court passed a decree for partition and referred the matter to the Commissioner to make the usual investigations in such suits. I have not thought it necessary to go into the details of all the different questions raised in that suit but have merely touched the main issues between the parties in that suit. Against Mr. Justice Jardine's findings, the appellant, Mr. Ahmedbhai, appealed and that appeal was heard by Sir Charles Sargent and Mr. Justice Bailey in June 1889 and the decision of the question, whether matters between Ahmedbhai and his issue are res judicala or not, depend entirely on the judgment delivered by the appeal Court. The appeal Court reversed the decree of the lower Court and dismissed the suit with costs throughout on the plaintiff Cassambhai. On one of the main contentions between the parties, the Court held that Cassambhai was not entitled to claim partition from his father of ancestral property during his father's lifetime. In the course of his judgment, Sir Charles Sargent says: 'Upon the whole of the evidence, we have come to the conclusion that the plaintiff has not proved that, according to the general custom of Khojas in Bombay, the son is entitled to demand partition of ancestral property'. Having found this, the learned Chief Justice goes on to say : 'This is sufficient for the decision of the case but we think it advisable to express an opinion on the question-doubtless a difficult one--whether Hubibbhoy's property was ancestral, as having arisen from a nucleus of property inherited from his father Ibrahim'. Differing from the learned Judge below, the appeal Court held that the onus of proving this lay on the plaintiff. The judgment then proceeds to discuss the second and larger question very shortly and concludes the Court's judgment in the following words :--' Upon the whole of the evidence bearing on this part of the case, we think that, although it makes it possible that Hubibbhoy inherited some property from his father, it must be regarded as falling short of such proof as the plaintiff ought to have given, under all the circumstances of the case, that it contributed materially to the funds which Habibbhoy employed in the business. We must, therefore, reverse the decree with costs throughout on the plaintiff'.
18. A careful perusal of the judgment of the appeal Court leaves no doubt whatever in my mind that the learned Judges disposed of the appeal and dismissed the suit on only one ground and that was that it had not been proved that, according to the custom governing the Khojas in (sic) the son is entitled to demand partition of ancestral property during (sic) life-time. For the purposes of their judgment the appeal Court assumed that Cassambhai's contention in that the property was ancestral, was correct and held, even on that assumption, that he was not entitled to claim partition during his father's life-time. That this was the only ground on which the appeal Court based its decision and disposed of the suit and appeal, is abundantly clear from the language used in the judgment. For instance, what could be clearer than the sentence hat precedes the Court's examination of the second question as to whether the property was or was not ancestral. The words referring to the first finding, are 'this is sufficient for the decision of the case' and then they go on to say that they consider it advisable to express an opinion on the other and more difficult question. If the appeal Court intended to make a judicial pronouncement of their opinion, on the second point, it seems to me the discussion of the evidence would have been much fuller than is contained in that Court's judgment, and Sir Charles Sargent could never have prefaced the decision by premising that 'the Court considers it advisable to express an opinion.' Then again, take the pea ultimate sentence in the judgment, where they use the words, ' we think.' The words 'we think' are, to my mind, conclusive evidence of the fact that the learned Judges of the appeal Court specifically refrain from coining to a deliberate decision on the second question in the suit. It is idle to speculate at this distance of time and without materials what may have been the object of their Lordships in recording their opinion. The question on whom the onus lay, had been decided in one way by Mr. Justice Jardine. With that decision, the learned Judges of the Court of appeal evidently disagreed. Again, the learned Judge in the Court below had come to a decision as to the nature of the property an 1 that decision appeared to their Lordships of the appeal Court as based on insufficient evidence and under the circumstances they seem to have thought it desirable to guard against the possibility of its being assumed that the appeal Court was in agreement with the lower Court on those points.
19. Mr. Inverarity relies on the word 'therefore' in the last sentence as showing that the decree was reversed on both grounds. It appears to me quite clear that the word 'therefore' is adversity used when the learned Judges say, 'We must, therefore, reverse the decree.' Read strictly in the light in which Mr. Inverarity asks us to read the last sentence, it seems to me that the word 'therefore' could not possibly refer to the first ground which was considered sufficient for the decision of the suit but refers only to the second ground and this reading would be manifestly wrong. Having very carefully studied the language of the judgment of the appeal Court, I have come to a very clear conclusion that Casambhai's suit was dismissed on the sole ground that he had no right to claim partition even of ancestral property in the hands of his father during his father's life-time. Against this judgment of the appeal Court, there was no further appeal to the Privy Council which leads to an inference having regard to the magnitude of the property involved, that the plaintiff in the suit was probably advised that the finding of the Court on his right to claim partition was correct, and that the other and larger question remained exactly where it was before. The appeal Court based their opinion as to the nature of the property expressly on the insufficiency of proof in this particular case, leaving it open to the parties to raise the question again, if able to adduce better proof at some future time. The contention that this question is res judicata between the plaintiff and his issue is also untenable on another ground. The fifth defendant was alive at the date of the suit but was not made a party to it. The father of the seventh defendant was also alive but was not made a party to that suit and defendant No. 6 was not then born. How could it be contended that the decision in a suit to which they were no parties is binding on them? It is, I think, futile to contend that they claim under their fathers or grand-father. A male member of a joint and undivided Hindu family becomes interested in the ancestral family property by reason of his birth and in Wasantrao Madhaowrao v. Anandrao Ganpatrao (1904) 6 Bom. L.R. 925, we have the decisions of our own appeal Court, confirmed by the Privy Council, that a son born in a joint Hindu family takes an interest in the property of that family by reason of his birth and that his claim to interest in that property is based on his own rights by reason of his becoming a coparcener in that family at his birth.
20. In the course of the judgment of the Privy Council, delivered by Lord Robertson, their Lordships say: 'It must be borne in mind on the assumption which is now made that the estate was ancestral, the respondent took at his birth a right in the estate independent of his father.' If the property in the hands of the appellant is ancestral, defendants 3 to 7 have acquired therein an interest at their birth quite independently of each other and although there has been inconclusive litigation between the appellant and his two sons as to whether the property was or was not ancestral, the other three defendants have had nothing to do with this litigation and they are entitled to have the question whenever raised, tried and finally determined. Why did not the plaintiff rely on his contention that the claim of his male issue was res judicata and that they were debarred from making any claim, in his plaint against the first two defendants and why did he bring the other defendants in the Court and claim a declaration against them in this suit if he thought his present contention was correct. In no case can it, in my opinion, be successfully contended that they are debarred from raising the question and stopped from claiming an interest in the property in the appellant's hands, by reason of the previous litigation to which I have referred.
21. Before leaving this point, I think it is necessary to say that after having carefully studied the two judgments of the Chief Justice Sir Francis MacLean and Mr. Justice Banerjee in the case of Peary Mohun Mukerjee v. Ambica Churn Bando Padhya ILR (1897) Cal. 900, on which Mr. Inverarity has relied very strongly, I do not see any reason or necessity to differ from the conclusion arrived at, or to express any doubt as to the soundness of the reasoning on which the decision of the learned Judges is based in that case, as the learned Judge in the Court below has done. The facts there were very different from the facts in this case. The preliminary question as to the notice under the Bengal Municipal Act, as well as the questions on the merits, were both directly and substantially in issue between the same parties in a former suit and both those questions were heard and finally decided by the Court. Although the suit failed for want of notice, there was no question whatever that the Court had fully gone into the merits of the case and pronounced a decision thereon and the Calcutta Court seems to me to have been indisputably correct in holding in a later suit between the same parties, that the matter as between them was res judicata. The facts here are quite different from the facts in that case and, as I have observed before, the question as to whether certain matters are or are not res judicata between certain parties mainly depends on the facts and circumstances surrounding each particular case.
22. I concur in the finding of the lower Court on issue No. 14 and hold that the question as to whether the property in the possession of the appellant, including the property he contracted to sell to Bai Avabai, is ancestral property belonging to the family or is his self-acquired property, although directly and substantially in issue between the parties to a former suit, has not been heard and finally decided between the appellant and the defendants 3, 4, 5, 6 and 7 so as to stop those defendants from claiming to have the question tried and determined whenever properly raised.
23. This being so, the next question that arises for the consideration of the Court is as to the frame of this suit. Was the appellant-plaintiff entitled to maintain the suit and insist on its proceeding to a hearing and final determination in the shape in which the suit appeared before Mr. Justice Beaman? Was it properly constituted, or was it bad by reason of mis-joinder of cause of action or of parties, and so, objectionable on the ground of multifarious ness?
24. Before discussing this question, I think it is necessary to express an opinion on a point on which Mr. Inverarity has laid much stress, while arguing the appellant's case. The learned Counsel contended that when the plaint was amended, his client believed that the male issue made no claim to the property in his possession but that the added defendants were brought on the record merely for the safety of the purchaser. I feel considerable difficulty in accepting this view that was pressed upon us. I do not think the appellant could possibly have believed that not one of the five male members of his family were making any claim to the property and that they were all acquiescing in his contentions that the property in his possession was his absolute self-acquired property over which he had an unfettered right of disposition and alienation. If he had believed that that was the attitude of his sons and grand-sons, he would have found a dozen easier and more convincing modes of satisfying the purchasers' solicitors than the one he adopted. The evidence on the record shows that the appellant was trying to induce some at least of the members of his family to make a declaration withdrawing their claims, and although he succeeded in sending one of his sons to Bai Awabai's solicitors he did not succeed in getting that son to make a declaration abandoning all claims to the property in question. Although, again, he got his solicitors to draft letters evidencing the abandonment or absence of claim, he did not succeed in getting the sons and grandsons to sign and pass such letters. Judging from the previous litigation between himself and his sons, judging from the course of events which followed culminating in this litigation, judging from the course this litigation itself has taken, it seems to me to be abundantly clear that the appellant's male issue never at any time gave any indication of abandoning their contentions with reference to the nature of the property in the appellant's possession or giving up the claim to be co-parceners in that property which they seem all along to have made. What appears to me to be a reasonable inference to draw from the procedure adopted by the appellant is that he found that he had made a good bargain which was likely to fall through in consequence of the attitude adopted by the male members of his family. He tried to overcome this difficulty by getting them to withdraw their claim. Failing in his attempts, he must have been advised that he could not enforce the sale against the purchaser's executors and that his suit must fail and as a last resort he brought his male issue into the suit in the hope of thereby strengthening his hands. After the prolonged litigation between him and his two sons, nothing seems to have occurred which could induce the Court to believe that his sons had abandoned their claim to the extensive estate which the appellant owns. It is possible that Mr. Ahmedbhai may have hoped that he could induce his sons and grandsons to withdraw their objection to this particular sale and it seems likely that they might have done this if Mr. Ahmedbhai had complied with their demands but I do not think that they were prepared at any time to abandon their contention that they were interested in the property in Mr. Ahmedbhai's hands and withdraw their claim altogether.
25. It will thus be seen that when the suit came on before the learned Judge in the lower Court for hearing he had before him two distinct sets of defendants. The first set of defendants, the executor and executrix of Bai Awabai's will who did not disguise the fact that they were unwilling purchasers, were prepared to fight the plaintiff on the ground that he was not able to perform his part of the contract by making out a good title to the premises agreed to be sold free from all claims. Their counsel has made no secret of the fact that his clients' testatrix purchased this property with the object of erecting thereon a building for her residence suitable to her wealth and position, that she having died the executors were not willing purchasers but were nevertheless bound to carry out the contract and willing to do so, if the appellant could make out a good title to the property, such a title as a Court would compel an unwilling purchaser to take. On the other hand, we have a second set of defendants who stoutly challenged the plaintiff's right to alienate the real estate in his possession without any necessity for doing so. They denied that the appellant was the sole or absolute owner of his property, they claimed an interest in that property as being the property which belonged to the family in which they were co-parceners, and they were there prepared to fight the question and to establish, if they could, that the property in Ahmed bhai's hands was ancestral property in which they were all interested.
26. The simple question before the Court at the very outset therefore was, whether the plaintiff was entitled to maintain the suit as constituted and framed after the amendments. There were, without doubt, two sets of defendants and the relief's prayed against these two sets were not the same. The plaintiff could unite in the same suit different sets of defendants, if the conditions laid down in Order I, Rule 3, are fulfilled, and different causes of action against the same defendant or defendants could only be joined in the same suit, if the conditions of Order II, Rule 3, are satisfied.
27. The question of joinder of parties and of causes of action in the same suit was argued very elaborately before me in the early part of 1909 in the case of Umabai v. Bhavu Balvant (1909) 11 Bom. L.R. 499, and in that case I have expressed my views on this point very fully, and it seems to me unnecessary to discuss this question again in detail. Before different sets of defendants could be joined in the same suit or different causes of action united in one suit, two conditions must be fulfilled. First, the right to relief sought in the suit must arise against all the defendants from the same act or transaction or the same series of acts or transactions; and, secondly, some common question either of fact or law should arise against the defendants, if separate suits were brought against such persons. It seems to me that this is a most glaring case of misjoinder of parties and of causes of action. The transaction which gives the plaintiffs a cause of action against the executor-defendants is a transaction to which the other defendants are absolute strangers. They are no parties to the contract for sale. They have had nothing whatever to do with the transaction between the appellant and the late Bai Awabai. The transaction was solely between the appellant and the testatrix of the first set of defendants. The plaintiff's cause of action against the executor-defendants is totally different from his cause of action against the other set of defendants. The relief he seeks against the first two defendants has nothing whatever in common with the relief he seeks against the other defendants. There is no common question either of law or of fact which would arise against the two sets of defendants, if separate suits were filed against them. If, for instance, the present suit was split up into two suits, there is not a single question which would arise in the suit between the plaintiff and the executor-defendants which would arise in the suit against the plaintiff and his male issue. In a suit against defendants 1 and 2 all that the defendants there would have to prove in order to succeed was that the plaintiff's male issue were making a claim and the plaintiff had not cleared that claim. Whether the claim was well founded or not did not matter to them. Ahmedbhai was bound to clear that claim. And, conversely, in the suit between the plaintiff and his male issue, there would arise no question whatever either of fact or law which would even most remotely touch the executor-defendants. If the application for the amendment of the plaint in this suit had been made to me as a Chamber Judge, I should have most unhesitatingly refused to grant it and, if the application had been made after service of summons and on notice to the first two defendants, I have not the slightest doubt that the application would not have been entertained for one moment. The suit as constituted was clearly bad on grounds of misjoinder both of parties and of causes of action. I could understand the attitude of the second set of defendants in not wishing to take the point at the outset. They may have been eager to have the question of the nature of the property in the plaintiff's possession fought out and settled once for all. But I feel considerable difficulty in understanding the attitude adopted at the hearing by the first two defendants. It is a matter of regret that the point was not taken at the very earliest opportunity and a specific issue raised and its adjudication insisted upon. Much valuable time, much money, and a great deal of energy would, I think, have been saved, if a specific issue as to whether the suit was or was not bad by reason of misjoinder of causes of action and of parties had been raised at the first hearing and tried before launching into the merits. If the question of misjoinder had been raised and decided against the plaintiff, as I have no doubt it would have been, judging from the strong views expressed by the learned Judge below in the course of his judgment, the suit would have come to a most expeditious termination and much useless labour saved to the Court. Rule 10, Sub-section 2 of Order I gives the Court unfettered discretion at any stage of the proceedings either upon or without the application of either party to order that the nun of any party improperly joined whether as plaintiff or defendant be struck nut, and I have no doubt if the case had been placed before the learned Judge in the light in which he subsequently saw it, he would, without hesitation, have made an order striking out the added defendants and confining the suit to the original defendants and to the cause of action against them alone. I do not think this is a case in which the Court would have allowed the plaintiff to elect against which set of defendants he would proceed. After the inconclusive litigation which ended in 1889, the plaintiff seems never to have taken any steps whatever to settle definitely the disputes between him and his male issue and was quite content to leave it where it was, and it was only when he found that he was losing the advantage of a very profitable bargain that he raised the question again in this suit. The main object of filing this suit was, if possible, to enforce the sale against the purchaser and, if allowed to elect, I doubt whether he would have elected to proceed against the second set of defendants. His suit was not originally intended against the second set. It has been open to him during well nigh twenty years to file a suit to establish his contentions against his male issue which he has never chosen to do so and that strengthens my belief that, if he had been put to his election, he would not have elected to proceed against the second set of defendants. Mr. Inerarity told us that, if he had been put to his election in the lower Court, he would probably have elected to proceed against the second set of defendants and he assured us that if he was given his election now he would certainly make that choice. I could quite understand this attitude because in the light of fuller discussion that has taken place since the hearing opened before the learned Judge in the lower Court, the learned Counsel for the plaintiff must have realized that electing to go on against the first two defendants, leaving the claim of the other defendants unsettled and outstanding, would be most futile. It is, however, idle to speculate what may have happened. In the view I take of the matter, I am of opinion that, on the question of misjoinder being raised or brought to the notice of the Court, the only proper order in this suit would have been to direct that the names of the added defendants should be struck out and the case proceed to a hearing as originally framed. This, however, was not done, and Mr. Inverarity contends that the question of misjoinder was waived by the defendants and could not be taken by them at the very late stage at which it was taken. And, in support of his contention, he relies on Rule 13 of Order I and Rule 7 of Order II. No doubt, these rules make it incumbent on the party objecting to the constitution of a suit on grounds of non-joinder or mis-joinder of parties or of misjoinder of causes of action to take the objection at the very earliest opportunity and provide that any such objection not so taken shall be deemed to have been waived. The earliest opportunity which the defendants had for taking this objection, was when they filed their written statements and defendants 1, 2 and 3 have taken this objection in their respective written statements. No doubt, the learned Counsel who raised issues did not raise a distinct or specific issue with reference to the frame of the suit. I think such an issue ought to have been raised on behalf of defendants 1 and 2 in any event. They were concerned merely with the question as to whether they should or should not be compelled to complete the purchase by their testatrix, and they realized the difficulty created by the plaintiff by joining the other defendants and protested against the same in their written statement. I think under the circumstances it was extremely desirable that a specific issue should have been raised and pressed upon the Court for early adjudication. However, we must take the facts as they are. No issue was raised and the Court was not asked to come to any determination on this point till a very late stage of the proceedings. Does that amount to a waiver on the part of the defendants? When I say defendants, I am more particularly referring to defendants 1 and 2. As I observed before, it is possible that the other defendants may not have desired to raise the question and may have been anxious to fight the plaintiff on the merits of the question he had raised in the suit against them; but defendants 1 and 2 were vitally interested either in putting an end to this litigation against them or in compelling the plaintiff to restrict his suit to the simple question of specific performance against them. We were assured at the hearing that it was never the intention of the defendants 1 and 2 to waive this question, and, judging from the circumstances of the case, it is not possible to believe that they could have intended to waive their objection which they had made in their written statement. Beyond the fact that the learned Counsel appearing for them did not raise a specific issue on this point, there is nothing to lead the Court to come to the conclusion that the defendants 1 and 2 either intended to, or did actually waive, their objection to the frame of the suit.
28. Although it has been the practice of these Courts to allow the defendant's counsel to raise issues soon after the pleadings are read, it must be remembered that the duty of framing and recording issues is cast by law upon the Court. Rule 1, Clause 5 of Order XIV provides that at the first hearing of the suit 'the Court shall...ascertain upon what material proposition of fact or of law the parties are at variance and shall thereupon proceed to frame and record the issues...'the practice of framing issues in the first instance, as suggested by counsel for the defendants, has been of very old standing in our Courts, and I believe it originated in the assumption that the defendant's counsel would be the one person best qualified to assist the Court by stating in the form of issues the material points on which the parties are at variance. Defendant's counsel, however, is under no obligation to raise or frame issues. He is only bound to give such information to the Court on behalf of his client as may be necessary to form a correct appreciation of the disputes and differences between the parties, and I do not think that any omission on his part, when suggesting issues to the Court, ought to prejudice his clients to the extent of holding that they had waived, what appears to me to have been, a most conclusive objection against the constitution of the suit. But assuming for the purposes of argument that all the defendants waived their objections to the frame of suit on grounds of misjoinder of parties and causes of action, it was still open to the Court to take the objection at any time on its own initiative. For this there is very clear authority. Greenwood v. Churchill (1833) 1 M. & K. 559. It appears that in that case an objection was taken that the suit was multifarious and it was contended on behalf of the plaintiff that the authorities showed that the objection of multifarious ness could not be taken at the hearing. The Master of the Rolls met this objection by saying that so far as the defendants were concerned, they ought to have raised their objections by their answers, but, though the defendants were precluded from raising the objections at the hearing, the Court itself would take the objection, if it thought fit to do so, with a view to the order and regularity of its proceedings.
In the present case it is admitted that the learned Judge, as soon as he realized the real nature of the respective contentions of the parties, repeatedly suggested to the learned Counsel for the plaintiff that he should proceed either against the first or against the second set of defendants. The learned Judge below, in the course of his judgment, says: 'The Court suggested that the plaintiff should abandon his claim against the executors and proceed, if he could, against his male issue or leave them out altogether and keep the narrow issue between himself and the executors but counsel refused to adopt any suggestion of the kind.'
29. Of course, counsel is not under any obligation to accept a mere suggestion of the Court, but all counsel appearing before a Court are bound to obey its rulings, and it seems to me that it was a pity that when the learned Judge found that his suggestions were not accepted, he did not stop the further progress of the case there and then and exercise the powers conferred on him by making an order under Rule 10, Clause 2 of Order I, striking out the added defendants and confining the further hearing to the questions arising in the suit as between the plaintiff and the first two defendants or by making use of the very wide discretionary power conferred on the Court by Rule 6 of Order II. The learned Judge, however, allowed himself to be persuaded to complete the record by allowing all parties to put in all documentary and oral evidence before the Court. The want of decisive action entirely due to the good nature of the learned Judge had made it possible for the learned Counsel for the plaintiff to make a grievance before the appeal Court and has enabled him to complain that he had not been given his election.
30. I have carefully perused the whole of the judgment of the learned Judge in the lower Court, and from that I gather that he has refused to adjudicate on all points of difference between the plaintiff and the second set of defendants and held that the plaintiff was not entitled to a decree for specific performance against the first two defendants and dismissed the whole suit with all costs on the plaintiff.
31. We are asked in appeal to hold that the order dismissing the suit is erroneous, that there has been no misjoinder of parties or causes of action, that if the learned Judge was of opinion that there was misjoinder, he should have permitted the plaintiff to elect, and that in any event the dismissal of the suit as against defendants 3 to 7 was unjustifiable.
32. The appeal was argued before us on the understanding that if we came to the conclusion that the dismissal of the suit against both sets of defendants was erroneous, we should then either remand the suit for final adjudication as between plaintiff and defendants 3 to 7 to the learned Judge who heard the suit or we should proceed to adjudicate upon those matters ourselves on the materials that are before the Court. I am very clearly of opinion that the learned Judge was perfectly correct in the conclusions to which he has arrived in his judgment. It is unfortunate that he did not technically follow the procedure laid down by the Code and make his orders at the proper time instead of postponing the same till he delivered his judgment. Section 99 of the Civil Procedure Code, however, provides that no decree shall be reversed nor shall any case be remanded in appeal on account of any error, defect or irregularity in any proceedings in the suit not affecting the merits of the case.
33. Now, in this case the merits are not, in my opinion, in the least affected nor is the plaintiff in the slightest degree prejudiced because Mr. Justice Beaman did not, in the course of the hearing, specifically do what he has done in his judgment. In the first place, as I have stated above, it is to my mind perfectly clear that there was a distinct misjoinder of defendants and of causes of action. Although I fail to appreciate the distinction which Mr. Lowndes tried to press upon us by insisting that this was not merely a question of procedure but was more a rule of equity, that claimants to property should not be joined in a suit by the vendor for specific performance against his purchaser, I am willing to concede that if by relying on a rule of equity he intended to assert that Courts of equity have steadfastly refused to allow a simple suit for specific performance to be converted into a complicated litigation between the plaintiff and the other parties claiming adversely to him or setting up an interest of their own in the premises in question, the learned Counsel is perfectly correct.
34. Whatever differences of opinions there may have been as to what are proper parties to be joined in a suit and what causes of action can be combined in one suit, as far as other classes of cases are concerned, there is no doubt that in cases for specific performance of sale or purchase of property, the Courts have uniformly refused to allow parties other than those who are parties to a contract to be joined in the suit.
35. In Mole v. Smith (1822) Jae. 490 the Lord Chancellor Lord Eldon crystallizes the practice of the Court in the following words: 'I apprehend that when a bill is filed for a specific performance, it should not be mixed up with a prayer for relief against other persons claiming an interest in the estate. If there was a title in other persons that the plaintiffs were bound to get in, they should have filed a bill for a specific performance only, and should have fortified the defects of their title by such mode as they could, so as to be able to complete it by the time when the contract would have to be enforced.'
36. In Tasker v. Small (1837) 3 M. &. C. 63, the Lord Chancellor Lord Cottenham refers to the case of Mole v. Smith with approval and follows it. In the course of his judgment he says: 'It is not disputed, that, generally, to a bill for a specific performance of a contract of sale, the parties to the contract only are the proper parties; and when the ground of the jurisdiction of Courts of equity in suits of that kind is considered, it could not properly be other wise,' and, after referring to Mole v. Smith, the Lord Chancellor goes on to say, 'It is to be regretted that this opinion will prevent the parties from having the question between them so effectively decided as it might otherwise have been; but I cannot, to avoid an inconvenience in a particular case, sanction a proceeding which I consider to be inconsistent with the rules of pleading and which, if recognized, might lead to much difficulty and confusion in the proceedings of the Court.'
I do not think any further authority is necessary to emphasize the fact that the second set of defendants ought never to have been brought on the record in this suit and ought to find no place whatever in a suit for specific performance against the first set of defendants, and I am perfectly certain that if the case had been presented to the learned Judge below in the light in which he subsequently saw it, he would have undoubtedly exercised the powers vested in him either under Rule 10, Clause 2 of Order I or Rule 6 of Order II by immediately ordering the name's of the last five defendants to be struck from the suit and restoring the suit to the form in which it was originally filed.
37. Rule 6 of Order II is part of English Order XVIII, Rule 1, and it is to be noticed that in adopting the rule, the last words 'for the separate disposal thereof' are omitted, so that it gives a much wider discretion to our Courts and allows a Judge, when he finds even in cases where there may be no technical mis-joinder of causes of action but where nevertheless two causes of action are joined in one suit and if it appears to the Court that the two causes of action could not be conveniently tried or disposed of altogether, to make such order as may be expedient. It is quite clear to my mind that the learned Judge has in fact dealt with the suit by treating it as originally filed and ordering that it should stand dismissed as against the other defendants.
38. The only other question that remains to consider is, whether the dismissal of the suit as against the first two defendants is correct or not. Mr. Inverarity has, as usual, been perfectly candid with us and he has admitted before us that, apart from his contention that the question of title is res judicata and that a Khoja father is entitled to alienate his property, even though ancestral, and that the other defendants are now before the Court, the plaintiff's title to the premises sold would not be such as he could enforce an unwilling purchaser to take.
39. The question of res judicata has been decided against the plaintiff in the lower Court and I concur in that decision. The other contention that a Khoja father is entitled to alienate his property, even though ancestral, has never been pleaded. The plaintiff has never conceded the possibility of the property in his possession, and more especially the property contracted to be sold, being ancestral in his hands, and the trial of the question of the right set up on behalf of the Khoja father would, I think, take as much time as the other questions between the plaintiff and his male issue. The learned Counsel for the plaintiff has also argued that the plaintiff having been in adverse possession against his male issue during the period specified in the Limitation Act his issue are now debarred from making any claim to that property.
40. The question of adverse possession has been dealt with by the learned Judge below and decided against the plaintiff. And in the grounds of appeal this point has never been taken. The plaint again makes no mention whatever of this plea, and adverse possession has never been pleaded against the other defendants. Every one of the questions between the plaintiff and his male issue are fraught with great many difficulties. The previous litigation lasting from 1884 to 1889 was inconclusive, and having regard to the magnitude of the estate in the plaintiff's possession and the embittered feelings which evidently exist between the plaintiff and his sons and grandsons, it is quite clear that litigation to settle the disputes between him and them with reference to this property would be both prolonged and embittered and would spread over many years, and no Court would compel the purchasers of one of the properties in dispute between these parties to wait till those disputes are fully settled.
41. It was urged before us that if the lower Court's decision stands and if we affirm the same, it would paralyze the plaintiff's hands and he would be unable to deal with the many properties which he owns. Whatever effect our decision may have on the plaintiff's ability to deal with his properties, we cannot allow consideration of that kind to influence our judgment in considering the plaintiff's case against the first two defendants. The plaintiff had all this time since 1889, when he could, if he had desired, have got his position defined by legal proceedings against his issue. He has chosen to lie by and do nothing during all these years. He cannot now be heard to say that he would be prejudiced in dealing with the property, unless he is allowed to establish his contentions against his issue in this suit. He ought to have considered his position and considered the attitude of his sons and grandsons before he entered into contract for the sale of his property. He contracted to make out a good title free from all incumbrances and claims whatsoever. That he has failed to do There are claims against this property and even if he is finally able to establish that they are unfounded, it would still take him many years and prolonged litigation to do it; and it would be both inequitable and unjust to ask the purchasers to wait till he has litigated with the claimants and established his title.
Under these circumstances, I hold that the learned Judge was perfectly correct in dismissing the suit against the executor-defendants and refusing to order specific performance of the plaintiff's contract with Bai Awabai.
42. The conclusion to which I have arrived is that the order of the lower Court dismissing the suit wholly and against all defendants should be affirmed. In this conclusion my learned brother concurs, though in one of the points involved in the case not affecting the result, I have the misfortune to differ from him.
43. The learned Judge below has thrown the whole costs of the suit on the plaintiff. We are unable to concur in the justice of that order. I am quite aware that the order as to costs is one of discretion with the Judge hearing the suit, and I am quite cognizant of the fact that it is the settled practice of the appeal Court never to interfere with the Judge below in his order as to costs unless the order offends against some well-recognized principle or unless the appeal Court feels that it would be unjust to the party against whom it is made if the order be allowed to stand. I feel sure that the learned Judge who made the order would himself have made a different order, if the question of costs had been argued before him fully and his attention drawn to the hardship of the order directing the plaintiff to pay the whole of the costs of the prolonged hearing before him. No doubt the plaintiff was liable to pay the costs of both sets of defendants up to a certain stage of the hearing. He filed a suit against the executor-defendants and failed. He brought in the other defendants and they were dismissed from the suit. The question of res judicata was a proper question to argue before the Court and it was argued at the right time. The plaintiff was bound to pay all the costs of both sets of defendants up to the time the learned Judge delivered his judgment on the point of res judicata. After that, I think, if the defendants had done what they were bound, in our opinion, to do, and raised the question of mis-joinder of parties and of causes of action and the question of executor-defendants' liability to perform the contract specifically had been argued, the hearing of the suit would not have taken more than one full day. The order as to costs, that, under the circumstances, would have been just one, would have been to award to both sets of defendants their costs up to the time when the Court decided the question of res judicata and the costs of one full day after that. All other costs all parties ought to have been left to bear themselves. I feel that in the interests of justice it is imperative that we should vary the order of the lower Court as to costs in the manner I have indicated above. Subject to that variation, we dismiss the appeal and direct the appellant to pay the respondents' costs of this appeal.
44. I concur in the conclusion arrived at by my learned colleague, but on somewhat different grounds. I think it desirable, therefore, to state shortly my views on certain points.
45. I concur in the landing as to res judicata and in general in the reasoning on which that finding is based. I am unable, however, to concur with Mr. Justice Davar on the point of waiver by the defendants of their objections to the frame of the suit, both as to misjoinder of parties and of causes of action. I find it impossible to hold that these objections were not waived by both sets of defendants.
46. As to the second set Mr. Raikes, on their behalf, stated with great candour that he was, even now, anxious, not merely prepared, to fight out in this suit the questions arising between his clients and the plaintiff; and it is evident that he was all along most anxious to do so. Clearly, so far as lay in their power, the defendants, other than the first and second defendants, have waived any objections as to misjoinder. As regards defendants 1 and 2 Mr. Lowndes has stated most positively that he did not argue that there was a misjoinder, but that under the rule of equity the title could not be forced on his clients whether the remaining defendants were or were not parties to the suit. It is only fair to him and to his clients to put on record that he added that the objection which he took, though not grounded on misjoinder came to the same thing. It is clear from the statements of their counsel made in the course of this hearing and from the record of the Court below, that this attitude was deliberately taken by and on behalf of the defendants 1 and 2, from the outset of the hearing in the Court of first instance. It was for this reason, I understand, that no issue as to misjoinder was specifically raised, it being considered not to the interest of the defendants 1 and 2 that the suit should be more or less summarily disposed of on a point of procedure. Under these circumstances it appears to me that the objections on these grounds must not only be deemed to have been waived but that they were deliberately and intentionally waived, and further are not now taken by either set of defendants. The defendants 3 to 7 are anxious to have their disputes with the plaintiff settled in this suit; the defendants 1 and 2 do not, so far as I can gather from the arguments addressed to us, invite us even now to dispose of the case under Orders I and II of the Code. They rely on the alleged rule of equity that where there are adverse claimants, i. e., claimants adverse to the vendor-plaintiff, whose claims are not purely illusory or manifestly unmentionable, the existence of such adverse claims entitles the defendant-purchaser to a decree in his favour in a suit for specific performance. It may be that that contention is sound. But that does not, in my opinion, entitle the defendant-purchaser to waive his objection to the misjoinder of parties and causes of action, as I have held the defendants in this case have done, and then when the very evil to avoid which the rule of equity has been framed, has resulted, to turn round and say at the very end of a long and costly litigation, that the claim of the plaintiff is bad, because by a rule of equity he the defendant-purchaser could not be compelled to do, what he has deliberately chosen to do, namely, to wait until a claim not obviously illusory has been enquired into.
47. I agree with my learned colleague that the rule of equity relied on by the defendants 1 and 2 only exists to the extent indicated by him in his judgment which I have had the advantage of perusing.
48. In my opinion, the cases cited show that Courts of Equity in England have been so clearly conscious of the evils that would result from allowing the procedure to be adopted, that was adopted in this case, that they have laid it down as a principle that it should not be permitted, and that those Courts do interfere and prevent its being done even when the parties themselves do not take the objection. But none the less is the objection grounded on the misjoinder of parties and of causes of action.
49. If the views above indicated are correct it would follow that the learned Judge in the Court below was justified in holding that there had been a misjoinder although the point was not taken by any of the parties before him. Rule 10 Sub-clause 2 of Order I is clear as to the power of the Judge to strike out parties improperly added. It is to be noted, however, that this power has only recently been conferred upon the Judge, who under the old Code could only do so on the application of a party to the suit.
50. Wide powers (not limited to any stage of the suit) are also given to the Judge, under Order II, Rule 6, in the case of misjoinder of causes of action.
51. It was urged by the appellant that the necessity of taking such objections at the earliest possible moment applied with equal force to the Judge as to the parties; but the words 'at any stage of the proceedings' in Order I, Rule 10, Sub-clause 2, sufficiently answer that contention so far as misjoinder of parties is concerned; and as regards Order II, Rule 6, it is not shown that it definitely appeared to the Court that the causes of action could not conveniently be tried together until Mr. Lowndes was stopped in the course of his argument.
52. It was further urged in this connection that it was the duty of the Court and not of counsel to frame issues. But the preliminary duty of the Judge is to ascertain upon what material propositions of fact or of law the parties are at variance. In the Bombay High Court, so far as I am aware, it has always been the practice for counsel for the defendant, after the reading of the pleadings, to suggest to the Court the issues which he desires raised. These are generally recorded by the presiding Judge, with but slight modification. The plaintiff then similarly suggests any issues he wishes raised or takes such objections as he may consider advisable to the issues raised by the defendant or to their form. It is in this way that in this High Court the Judge ascertains upon what material propositions of fact or of law the parties are at variance. It is, no doubt, due to the fact that these Courts can and do rely on the assistance of an able and highly trained Bar, that the provisions of Order I, Rule 3 and 4 have for all practical purposes dropped out of use. Unless the provisions of these rules are to be revived in practice it would be asking too much of the presiding Judge to expect that he should, on a mere perusal of the pleadings, be in a better position to determine the points in issue than the counsel engaged in the case. In this particular instance it would, in my opinion, have been impossible for the learned Judge in the Court below to ascertain from the issues as framed that there was any dispute between the parties as to misjoinder of causes of action or of parties. It is evident from the judgment now under our consideration that as soon as the true position became evident to him, the learned Judge, in effect, exercised the discretion vested in him under the Code.
53. It may be that in the difficult circumstances in which the Court was placed that a different exercise of that discretion would have been advisable. Courts of appeal have always been reluctant, and rightly so, to interfere in such cases, unless the lower Court has manifestly exercised its discretion on an erroneous view of the facts or the law. The course pursued by the lower Court has, in its essentials, though not in its form, met with the approval of my learned colleague, and I do not desire to express any dissentient opinion upon such a point.
54. After the decision of this appeal the respondents Nos. 3 to 7 applied for a review of the order as to costs. A rule nisi was granted on the 3rd March 1911.
55. In this appeal we left the decree of the lower Court dismissing the suit undisturbed but varied the order for costs made by the learned Judge below who heard this suit.
56. Our judgment explained the circumstances under which we affirmed the decree of dismissal and the reasons which led us to do so. We felt, however, that the order as to costs was one that called for our interference, and we accordingly varied the decree with reference to costs. This we did deliberately and after much anxious consideration.
57. After we delivered our judgments, an application was made to us to re-consider that portion of it which related to the costs of respondents 3 to 7, and, on the 3rd of March 1911, we granted a rule nisi on the application of Mr. Raikes calling upon the plaintiff to show cause why the order as to costs so far as respondents 3 to 7 were concerned should not be reconsidered or re-viewed.
58. This rule has been very fully and elaborately argued before us. It must be remembered in the first instance that this was not merely an appeal against costs but was an appeal against the whole decree and one of the grounds of appeal was that the order of the lower Court as to costs was improper. In the course of his argument, the learned Counsel for the applicants has relied on both English and Indian cases, and argued that we, sitting as appellate Judges ought not to have interfered with the discretion of the learned Judge who heard the suit in the lower Court and that we ought to have left the order for costs undisturbed as we affirmed the decree of that Court.
59. We think it desirable to point out that whereas the powers of the appellate Court with reference to appeals on costs in England are governed by statutory provisions, the appellate Court in India is absolutely unfettered, and where an appeal lies there is no exception made with reference to that part of the decree which deals with costs.
60. Section 96 of the Civil Procedure Code provides that an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorized to hear appeals from the decisions of such Court; and Section 107 provides that the appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein. Order XLI, Rule 33, further provides that the appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require.
61. These provisions of the Civil Procedure Code make it abundantly clear that the appellate Courts in India have the fullest power and the widest discretion to alter, vary or reverse any portion of a decree under appeal including the portion that deals with costs. In spite, however, of these powers, in practice, our Courts have as a rule refrained from interfering with the discretion of the lower Court on questions respecting costs except only under special circumstances. The only ground on which Mr. Raikes has pressed us to re-consider or review our order for costs and restore the original order is that the learned Judge in the lower Court having, in the exercise of his discretion, made the order for costs, we ought not to interfere as it did not infringe or violate any settled principle and was not made under any misapprehension of facts or on the misapplication of any particular rule. Both the English and the Indian authorities however which lay down the rule that the appellate Court ought not to interfere with the discretion of the lower Court, also lay down the qualification that the appeal Court will interfere if it is satisfied that the learned Judge has not exercised his discretion.
62. In Bew v. Bew  2 Ch. 467 Lindley, M.R., in the course of his judgment, observes that the correct conclusion to which the Court has arrived was that if the costs were in the discretion of the Judge, the Court of appeal will assume that the Judge exercised his discretion, unless it is satisfied that he has not exercised his discretion.
63. In Ranchordas v. Bai Kasi ilr (1892) 16 Bom. 676 Chief Justice Bayley, with whom was sitting Mr. Justice Farran, in the course of his judgment, after considering a large number of English authorities, says : 'The principle to be deduced from these decisions is that appeal Courts should interfere with the exercise of discretion by the lower Courts as to costs where there has been any misapprehension of facts, or violation of any established principle, or where there has been no real exercise of discretion at all.'
64. This case is cited with approval by another appellate Bench consisting of Sir Charles Farran and Mr. Justice Strachey in the case of Khushal v. Punamchand ILR (1897) 22 Bom. 164. The Chief Justice there says: 'It is objected that there cannot be an appeal upon the question of costs; but though an appellate Court is averse to interfere with the discretion of a Judge of first instance in awarding costs, and rarely, if ever, exercises its power, except in cases in which some question of principle is involved and the principle has been violated, the Civil Procedure Code does allow of an appeal from any part of a decree including the award of costs. This was decided in Ranchordas v. Bai Kasi ILR (1892) 16 Bom, 676. The law upon this subject is, we think, correctly laid down in the judgment of Bayley, Chief Justice, in that case.'
65. In a later case, Parshram Bhawoo v. Dorabji Pestonji (1900) 2 Bom. L.R. 254, Sir Lawrence Jenkins sitting with Mr. Justice Candy, follows the principle laid down in Bew v. Bew  2 Ch. 467 and holds that where costs are in the discretion of a Judge, the appellate Court will assume that the Judge has exercised his discretion, unless it is satisfied that ha has not exercised his discretion.
66. In this case we have no hesitation whatever in holding that the learned Judge in making his order for costs, has not exercised his discretion, and the circumstances under which the hearing of the case came to a conclusion before him, and the circumstances under which the learned Judge delivered his judgment, leave no doubt in our minds that he had no opportunity whatever of considering the question of costs. If we had felt that Mr. Justice Beaman had an opportunity of considering the question of costs and that he had made the order after consideration and in the exercise of his discretion, we might have hesitated in interfering with his order. It is admitted before us that the question of misjoinder of parties and causes of action, which Mr. Lowndes insisted on calling a violation of a rule of equity, was raised by him after the whole evidence had been recorded and weeks had been spent at the hearing of the suit and that only when he came in to reply on behalf of defendants 1 and 2. As soon as the objection to the constitution of the suit became clear to the learned Judge's mind, he expressed very strong views in favour of Mr. Lowndes's contention, and on his suggestion that the plaintiff should elect to proceed against either the one or the other set of defendants not being accepted, he heard Mr. Inverarity for the plaintiff. Judgment was reserved and we were told that counsel expected that the learned Judge would first decide the question as to whether the constitution of the suit was bad or not and then ask the plaintiff to elect against which set of defendants he would proceed. It was stated to us that, instead of doing this, the learned Judge delivered his judgment dismissing the suit and making the costs follow the event. Nothing was said and not a single argument was addressed to him on the question of costs. It seems the only point to which his Lordship's attention was directed was as to the provisions of certain costs separately incurred by the third respondent for a short time during which he had appeared by a separate set of solicitors and that too only when the minutes of the decree were spoken to. Mr. Justice Beaman has written a long and most exhaustive judgment in which he has discussed almost every point argued before him, but the whole of that judgment does not contain one single sentence as to costs. In one place in his judgment he observes that if the proper question had been raised by the defendants, the case would not have taken as many hours as it took days in hearing. In another portion he observes that the case, if rightly conducted before him, would have been over in a couple of days. In our opinion the defendants were wholly responsible for the prolongation of the hearing in the lower Court, which in the end proved so futile. We felt and we feel that such an order would never have been made by the learned Judge, if he had been invited to exercise his discretion in the lower Court.
67. In the course of the judgment which I delivered, I have stated that it was the settled practice of the appeal Court never to interfere with the Judge below in his order as to costs, unless the order offends against some well-recognized principle or unless the appeal Court feels that it would be unjust to the party against whom it is made, if the order be allowed to stand.
68. Mr. Raikes has argued that the authorities do not support the latter proposition. In other words, the argument was that an order for costs is always discretionary with the lower Court, that when the lower Court makes that order, it must be presumed that the Court made it in the exercise of its discretion and that the appeal Court must refrain from interfering with that order, however, strongly it may feel that the order is unjust to party against whom it is made. We are not prepared to accede to this argument. In India the appellate Court is invested with the fullest power to alter, vary, amend or reverse any portion of the decree under appeal including that part which deals with costs. And although the appellate Court may in practice impose upon itself certain limitations, we cannot think any appellate Court, having the power to reverse or revise an order, would stay its hands if it felt that the order was an unjust one.
69. In this case we felt very strongly that the order as to costs did require our interference. We feel convinced that in making that order for costs the learned Judge below had no opportunity of exercising his discretion, and, therefore, we were entitled to interfere with the order and vary it in the manner which appeared to us most just.
70. We discharge the rule and direct respondents 3 to 7 to pay the plaintiff's costs thereof.