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inder Bahadur Singh Vs. Sita Ram and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1941All209
Appellantinder Bahadur Singh
RespondentSita Ram and ors.
Excerpt:
.....bad for want of legal necessity and also on the ground of immorality of purpose. there were 62 defendants to the suit, and one of the pleas taken in defence was that the suit was bad for multifariousness. 290 that a similar suit brought against the alienees of a deceased member of a joint hindu family for the recovery of family property illegally alienated was not bad for multifariousness. 393 a reversioner sued> for possession of immovable property after the death of the widow of a man named ram jas and it was held by this court that it was competent to him to join as defendants not only other reversioners in possession of the property claimed, but also transferees of such property from the widow and such a suit is not bad for multifarious-ness. under that order it is clear that the..........most complicated and involved business, and as such, using the discretion vested in me by order 2, rule 6, civil p.c., i find that all these various causes of action cannot be conveniently tried together...2. the court accordingly returned the plaint to the applicant with directions to institute a separate suit against each set of defendants. it is against that order that the applicant has come to this court in revision. order 2, rule 6, civil p.c., reads as follows:where it appears to the court that any causes of action joined in one suit cannot be conveniently tried or disposed of together, the court may order separate trials or make such other order as may be expedient.3. learned counsel for the applicant contends that where a court orders separate trials under the provisions of the.....
Judgment:
ORDER

Collister, J.

1. This is a plaintiff's application in revision under Section 115, Civil P.C. The applicant instituted a suit for the avoidance of a number of alienations alleged to have been made over a period of 14 years by one Sitla Baksh Singh, the karta of the joint Hindu family of which the applicant is a member. It was alleged in the plaint that these transactions were either without consideration or for insufficient consideration and that they were bad for want of legal necessity and also on the ground of immorality of purpose. There were 62 defendants to the suit, and one of the pleas taken in defence was that the suit was bad for multifariousness. The learned Munsif says:

The result of this is that in reality the suit is not a single suit, but is a collection of a very large number of suits against a different set of defendants in each case and based on a different cause of action. To try all these suits together would be a most complicated and involved business, and as such, using the discretion vested in me by Order 2, Rule 6, Civil P.C., I find that all these various causes of action cannot be conveniently tried together...

2. The Court accordingly returned the plaint to the applicant with directions to institute a separate suit against each set of defendants. It is against that order that the applicant has come to this Court in revision. Order 2, Rule 6, Civil P.C., reads as follows:

Where it appears to the Court that any causes of action joined in one suit cannot be conveniently tried or disposed of together, the Court may order separate trials or make such other order as may be expedient.

3. Learned Counsel for the applicant contends that where a Court orders separate trials under the provisions of the aforesaid rule, it should deal with the separate causes of action as sub-suits under the title and number of the principal suits from which they spring and should not order the plaintiff to file separate plaints and as authority for this proposition he relies upon Mt. Rutta Bebee v. Dumree Lal ('70) 2 N.W.P.H.C.R. 158 and Khadar Sahib v. Chotibibi ('84) 8 Bom. 616. Now Rule 6 of Order 2, Civil P.C., seems to contemplate causes of action which have been properly joined in one suit and in order to ascertain whether in the case with which I am now dealing it was competent to the applicant to join in one and the same suit the various causes of action against all these defendants it is necessary to refer to Rule 3 of Order 2. Rule (1) of Order 2 enacts that:

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...

4. In Sami Chetti v. Ammani Achy ('74) 7 M.H.C.R. 260 the plaintiff alleged that during his minority his father's widows had alienated the whole estate bit by bit to 27 defendants and his suit was for the invalidation of those alienations and for possession. The trial Court dismissed the suit on the ground of misjoinder of causes of action but it was held by a Bench of the Madras High Court that there was no misjoinder. Holloway Ag. C.J. observed:

The Judge says that the cause of action against each of the purchasers is a distinct one. The plaintiff claims his share of family property. His cause of action, the right, is his relation to the family to which the property appertains and on this right, if established, and if he is not otherwise barred from recovering, he will be entitled to that share wherever found. The fact that various persons during his minority have affected to purchase parcels of the property does not destroy the unity of his ground of action. It will lie upon those who so purchased upon the establishment of his right, to show that the sales which they set up are binding upon him. There appears no objection whatever to the frame of the suit.

5. The Code of Civil Procedure at that time in force was Act 8 of 1859, and Section 8 of that Act provided as follows:

Causes of action by and against the same parties and cognizable by the same Court may be joined in the same suit provided the entire claim in respect of the amount or value of the property in suit does not exceed the jurisdiction of such Court.

6. Then there is a Full Bench decision of the same Court, Vasudeva Shanbhaga v. Kuleadi Narnapai ('74) 7 M.H.C.R. 290. There a suit had been brought against a number of alienees of a deceased member of an un. divided family for the recovery of family property alleged to have been illegally alienated by him and it was held by the Court that the suit ought not to be dismissed on the ground of multifariousness. At page 293 the learned Judges say:

It is manifest that the number and nature of the alienations are no unimportant elements for the determination of their property. It is most desirable that the whole of them should be at once before the Court called upon to decide the question in order to Secure the soundness of the particular decision and perhaps the avoidance of discordant decisions in different cases upon facts nearly the same.

7. In Mahomed v. Krishnan ('88) 11 Mad. 106 a suit was brought by the junior members of a tarwad to set aside alienations made by their karnavan. In all there were 48 such alienations. On the question of misjoinder the learned Judges at page 110 say:

It is argued that each of the alienees has a distinct interest in some of the items of property specified in the schedule annexed to the plaint and no interest whatever in the rest of the property in litigation that the cause of action in regard to each is separate and that the union of several such causes of action in one suit is contrary to Section 45, Civil P.C. But it was held by a Full Bench of this Court in Vasudeva Shanbhaga v. Kuleadi Narnapai ('74) 7 M.H.C.R. 290 that a similar suit brought against the alienees of a deceased member of a joint Hindu family for the recovery of family property illegally alienated was not bad for multifariousness.

8. Further on they say:

In the view that the primary ground of action is the interest vested in possession as regards the whole of the property in suit there is a unity of title and the claim made is one in respect of the same cause of action.

9. The Code of Civil Procedure at that time in force was Act 14 of 1882, and the relevant portion of Section 45 provided as follows:

Subject to the rules contained in Chap. II and; in Section 44 the plaintiff may unite in the same suit several causes of action against the same defendant or the same defendants jointly...

10. These provisions are practically identical with the provisions of Order 2, Rule 3 of the present Code. In Bal Krishna Das v. Hira Lal ('14) 1 A.I.R. 1914 All. 393 a reversioner sued> for possession of immovable property after the death of the widow of a man named Ram Jas and it was held by this Court that it was competent to him to join as defendants not only other reversioners in possession of the property claimed, but also transferees of such property from the widow and such a suit is not bad for multifarious-ness. The decision in that case rested upon the provisions of Order 4, Rule 3, Civil P.C., and. the learned Judges say:

Under that order it is clear that the plaintiff's suit was not bad for multifariousness and he was entitled to join all the defendants as parties to the suit so as to enable him to recover his share in the whole of the estate of Ram Jas.

11. Then there is another case from this Court, Prabati Kunwar v. Mahmud Fatima ('07) 29 All. 267. There the plaintiffs sued as heirs of their father to recover various portions of their father's estate from the hands of different alienees, and it was held that the suit was not bad for multifariousness. At p. 270 the learned Judges say:

The contention is that inasmuch as the property passed out of the hands of members of the family at different times under two transfers and a decree, suits ought to have been brought against the defendants separately in respect of the property of which, each had possession. We are of opinion that this contention is untenable.

12. Further on they say:

We think that in this case the plaintiffs had one cause of action only, namely the right on the death of their father to recover their shares of his property and that that cause of action accrued to them upon their father's death.

13. Towards the end of their judgment the learned Judges quote the following observation from the judgment of the Calcutta High Court in Nundo Kumar Nasker v. Banomali Gayan ('02) 29 Cal. 871.

What he (i.e., the plaintiff) is entitled to claim, is the recovery of possession of his land as a whole, and not in fragments, and we think that all persons who oppose him in the enforcement of that right are concerned in his cause of action and, ought accordingly to be made parties to a suit in which he seeks to give effect to it.

14. In my opinion the various sets of defendants in the case with which I am dealing have a community of interest in the sense that they all derive their title from one and the same person, Sitla Baksh Singh. The cause of action against them is the same as it would have been against Sitla Baksh Singh if he were alive, and in my judgment the suit is not bad for misjoinder of causes of action. The next matter which falls for consideration is whether the Court was competent to direct the applicant under Order 2, Rule 6, Civil P.C., to institute separate suits. In Mt. Rutta Bebee v. Dumree Lal ('70) 2 N.W.P.H.C.R. 158, the plaintiff sued to invalidate a number of sales and conveyances which had been executed by her husband whom she impleaded as a defendant in favour of the other defendants to the suit. She pleaded that her husband had by deed conveyed the property to her, but that he had been induced by fraud to concur in the transactions. The trial Court, purporting to act under Section 9 of Act 8 of 1859, directed the plaintiff to file separate plaints. This Court observed:

That section does not require the plaintiff to file separate plaints, but provides for the separate trial of the several causes of action contained in the one plaint which was filed on the institution of the suit.

15. Section 9 of Act 8 of 1859 provided as follows:

If two or more causes of action be joined in one suit and the Court shall be of opinion that they cannot conveniently be tried together, the Court may order separate trials of such causes of action to be held.

16. The words 'or make such order as may be expedient,' which occur in the later enactments do not find place in this section. In Khadar Sahib v. Chotibibi ('84) 8 Bom. 616 a Bench of the Bombay High Court, in considering Section 45 of Act 14 of 1882, made the following observations:

When the parties concerned, though in different relations, in a particular litigation are all before the Court, and their cases have been stated, the Court, if it finds the several causes as between the plaintiff and the several defendants cannot properly or conveniently be tried together, should deal with them separately as what may be called sub, suits under the title and number of the principal suit from which they spring.

17. The provisions of para. 2 of Section 45 of Act 14 of 1882 were essentially the same as the provisions of Order 2, Rule 6 of the present Code. I have not been able to find any later authority on the subject, but I agree with the view taken by the Bombay High Court, and I do not think that it was the intention of the Legislature that where the Court proceeds under Order 2, Rule 6, Civil P.C., the plaintiff should be required to file separate plaints. In my opinion, the proper order to pass in this case is that the applicant be given an opportunity so to amend his plaint that the allegations against each set 'of defendants in respect to the various alienations shall be separately set out in order that separate issues may be framed in respect to each such transaction, thus enabling the Court to try the suit in sections, each section forming part of the same proceeding and when this has been done, the Court will proceed with the trial of the suit. I accordingly allow this application and set aside the order of the Court below and I direct that it shall proceed in the manner indicated above. I make no order as to the costs of this revision.


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