1. The plaintiff who is the owner of a godown consisting of throe compartments situated in Kalyan street on one of the Port Trust estates sues two sets of defendants to recover from either the one or the other set a sum of money for rent' of his godown. The first six defendants are members of a firm of merchants and muccadams who carry on business as Messrs. Khimji Vishram. Defendants 7 and 8 are members of the firm of Nensy Khairaj and Company who are also merchants who carry on business in Bombay.
2. The plaintiff's godown was agreed to be let to Messrs. Khimji Vishram from the 1st of May 1906 for a fixed term of twelve months, At the date of the agreement the godown was in the occupation of Messrs. Nensy Khairaj and Company. It is alleged by Messrs. Khimji Vishram that they did not get possession of the premises in terms of this agreement; that only one compartment out of three was given possession of to them on the 22nd of May 1906 that they did not get possession of the two other compartments and consequently they hired other premises and they make certain counter-claims in respect of enhanced rent which they say they had to pay in-consequence of their not having been put in possession of the whole godown in terms of their agreement,
3. The second set of defendants plead that there was an oral agreement with the plaintiff that they should occupy the godown till the end, of May 1906; that they gave up possession of a portion of the godown before the 22nd of May 1906 and on the' 22nd of May they gave up possession of the remaining portion to the plaintiff and the first set of defendants Messrs. Khimji Vishram.'
4. The defendants plead that the suit as framed is had by reason of misjoinder of parties and of causes of action and the first issue in the case is "whether the suit as framed is maintainable." All parties agreed that this issue should be tried first as a preliminary issue.
5. Mr. Jardine contended that the suit was properly constituted and that the provisions of Section 28 of the Civil Procedure Code enabled his client to maintain his suit as it was constituted. Ho relied on the case of Madan Mohun Lal v. Holloway (1886) 12 Cal. 555.
6. Counsel for the defendants contended that the plaintiff had different causes of action against the two sets of defendants; that his claim against Messrs. Khimji. Vishram was based on a contract and his claim against Messrs. Nensy Khairaj was in respect of an alleged tort in that they wrongfully refused to give up possession at the expiration of their period of tenancy. Mr. Inverarity pointed out that in Order 16, Rule 4, the words "in respect of the same matter" which appeared in Section 28 of the Civil Procedure Code did not exist and consequently the scope of that rule was much wider and yet under that rule a suit like the present one would have been bad. He placed reliance on the case of Sadler v. Great Western Hallway Company [1896 A.C. 450 Mr. Inverarity's contention was that the plaintiff ought to be put to his election as to which of the two sets of defendants he will proceed against in this suit. I heard counsel's arguments on the first issue and the suit then stood adjourned for me to consider my judgment.
7. The facts of the case of Sadler v. Great Western Railway Company [1896 A.C. 450 are very dissimilar to the facts in this case and I think that case is distinguishable from this in many ways. In that case the plaintiff claimed damages against two Railway Companies for two distinct causes of action and the only attempt made to justify the actions it was constituted was made in paragraph 5 of the plaintiff's statement of claim where it was alleged that it was "by their respective combined acts the defendants prevented all access to the plaintiff's premises. One set of defendants owned premises to the south, the other to the north of the plaintiff's premises and each of the defendant companies were alleged to have caused obstruction to the plaintiff's premises on distinct sides of the same. Clearly therefore the plaintiff had a distinct and separate cause of action against each of the defendant companies in that case. Much of the argument also turned on the way the plaintiff's statement of claim was drawn. In that case the liability of the first defendant did not depend on any act of the second defendant. The relief claimed was not either joint or in the alternative and Lord Shand in the course of his judgment observed that the grounds of action were not only separable but were separate.
8. The facts of the case in Madam Mohun Lal v. Holloway (1836) 12 Cal. 555 relied on by Mr. Jardine are very similar to the facts in this case. In that case the plaintiff sued to recover rent from the first defendant and in the alternative if it was proved that the first defendant had paid rent to the second defendant who was the plaintiff's vendor then to recover the same from him as money had find received on plaintiffs account and wrongfully retained by him. The Calcutta High Court reversing the decrees of two lower Courts held that the suit was properly constituted.
9. The judgment of the Calcutta Courts in two other cases, one of Janokinath Mookerjee v. Ramrunjun Chuckerbutty (1878) 4 Cal. 949 and the other Bungsee Singh v. Soodist Lall (1881) 7 Cal. 730 are valuable guides on this question although the facts of those cases are not very similar to those in this case. It seems to me that the safest thing is to be guided by the words of Section 28 of the Code and the facts of this case, keeping in view the following general principle deduced from the result of the various cases on this point as summed up at page 146 of the Annual Practice 1907, where it is said "The general principle governing the joinder of defendants would seem to be that there must be a cause of action in which all the defendants are more or less interested, although the relief asked against them may vary, but that separate causes of action against separate defendants quite unconnected and not involving any common question of law or fact cannot safely be joined in one action." ' Remembering this and the words of Section 28 "in respect of the same matter," let us consider how the facts of this case stand. What is the matter involved in the present suit? The plaintiff claims to recover rent of his property. For the month of May which is portion of the period for which rent is claimed, the first set of defendants wore admittedly in possession of one gala or compartment from the 22nd of May and therefore prima facie they would be liable to pay some rent. The second set of defendants were in possession admittedly of the whole godown for some time in May and of two compartments till at least the 22nd of May so that prima facie they are liable to pay some rent to the plaintiff for that month. The second defendants unreservedly admit their liability to pay rent for the month of May Rs,. 285 and they say they have always been ready and willing to pay that. The first defendants admit their liability to pay for one compartment for the whole period of their occupation subject to their counter-claim for damages for the enhanced rent they had to pay by reason of the plaintiff's failure to put them in possession of the godown in terms of his agreement. The subject-matter in respect of which the plaintiff seeks relief against both sets of defendants is the rent of his godown. It is the same matter as regards both sets of defendants and both sets of defendants are interested in the adjudication of the questions involved in the suit and there are many questions of fact which are common to the case of both sets of defendants. The object of Section 28 seems to be to avoid multiplicity of suits if it could be done without embarrassment to any of the defendants. I have taken into consideration the various possible results of the suit and the questions involved in the suit and I have come to the conclusion that the most convenient way to try all the questions arising between the plaintiff and the defendants and the two sets of defendants inter se would best be tried in one suit where all the throe parties are before the Court as parties. The absence of one of the two sets of defendants would be both inconvenient and embarrassing in trying the questions between the plaintiff and one set of defendants whereas the presence of both sets of defendants would lead to a complete and effectual adjudication of all questions involved In the suit.
10. I hold for the reasons I have given above that the suit is properly constituted, that there is no misjoinder either of parties or of causes of action and I record a finding on the first issue in the affirmative.
11. The costs occasioned by the argument and trial of the first issue reserved to be dealt with when the question of costs of the suit is considered.