Skip to content


Ram Udit Pande and anr. Vs. Ambika Dat - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad High Court
Decided On
Judge
Reported in(1895)ILR17All274
AppellantRam Udit Pande and anr.
RespondentAmbika Dat
Excerpt:
.....of section 562 of the code of civil procedure for trial on the merits a suit in which the munsif of jaunpur dismissed the claim of the plaintiffs before him, respondents before us, on the ground that the claim as brought, without any leave of the court obtained under section 44, was bad for misjoinder of causes of action. the learned subordinate judge was perfectly right in holding that this suit was a suit for recovery of immoveable property and that no cause of action of a different character had been joined with the salt; the order passed by the subordinate judge was a good order and the appeal will have to be dismissed. the vendee resisted the claim on various grounds, one of which was that, as there had been two separate sale-deeds, the suit was bad owing to misjoinder of causes..........any leave of the court obtained under section 44, was bad for misjoinder of causes of action. the suit was a suit for the recovery of immoveable property, the plaintiffs claiming to have a right of pre-emption over that property. it is true that the property claimed had formed the subject-matter of two distinct deeds of sale to one and the same vendee. under one deed of sale the zamindari share was sold, and under the second deed of sale the sir-lands comprised in the zamindari were sold to the same vendee. the respondents entered in their plaint that their cause of action quoad the whole property claimed accrued on the 22nd of january 1892, when they expressed their readiness to buy and were refused. the learned subordinate judge was perfectly right in holding that this suit was a suit.....
Judgment:

Knox, J.

1. This is an appeal from an order whereby the Subordinate Judge of Jaunpur remanded to the Court of First Instance under the provisions of Section 562 of the Code of Civil Procedure for trial on the merits a suit in which the Munsif of Jaunpur dismissed the claim of the plaintiffs before him, respondents before us, on the ground that the claim as brought, without any leave of the Court obtained under Section 44, was bad for misjoinder of causes of action. The suit was a suit for the recovery of immoveable property, the plaintiffs claiming to have a right of pre-emption over that property. It is true that the property claimed had formed the subject-matter of two distinct deeds of sale to one and the same vendee. Under one deed of sale the zamindari share was sold, and under the second deed of sale the sir-lands comprised in the zamindari were sold to the same vendee. The respondents entered in their plaint that their cause of action quoad the whole property claimed accrued on the 22nd of January 1892, when they expressed their readiness to buy and were refused. The learned Subordinate Judge was perfectly right in holding that this suit was a suit for recovery of immoveable property and that no cause of action of a different character had been joined with the salt; in fact, in my opinion there was one and only one cause of action, i.e., the offers made by the respondents, and the refusal which compelled those respondents to bring a suit, and gave them the cause of action on which they came to the Civil Courts. The order passed by the Subordinate Judge was a good order and the appeal will have to be dismissed.

Aikman, J.

2. The appellant in this case, by two separate sale-deeds, executed on the 21st of January 1892, purchased, by one sale-deed the fir-land appertaining to a certain zamindari share, and by the other sale-deed the zemindari share itself. The idea with which two separate sale-deeds were executed was probably to evade the provisions of Sections 7 and 9 of the N.W.P. Bent Act (Act No. XII of 1881). The respondents brought a suit to establish a right of pre-emption in respect of this zamindari share and sir-land. The vendee resisted the claim on various grounds, one of which was that, as there had been two separate sale-deeds, the suit was bad owing to misjoinder of causes of action. Without entering into the merits of the case, the Munsif of Jaunpar on this plea dismissed the suit. The plaintiffs appealed to the Subordinate Judge, who set aside the decree of the lower Court and remanded the suit under the provisions of Section 562 of the Code for trial on the merits. Against this order of remand the present appeal is brought by the vendee. In my opinion the learned Subordinate Judge was perfectly right in remanding the suit. Section 45 of the Code of Civil Procedure provides that subject to the rules contained in chapter II and Section 44, the plaintiff may unite in the same suit several causes of action against the same defendant or defendants.' Chapter II relates only to the place of suing, and has nothing to do with the present case. Section 44 provides the at, except in certain specified cases, no cause of action shall be joined with a suit for the recovery of immoveable property, or to obtain a declaration of title to immoveable property. The Munsif in support of his order, says that the case is on all fours with the case of Harbans Singh v. Lachmina Kuar Weekly Notes, 1883, p. 230. This case is not in reality on all fours with the case referred to, for in the latter one pre-emption suit was brought in respect of the sale of properties situate in two different villages, in which possibly the terms of the wajib-ul-arz, might differ. But even if it had been on all fours, I find myself unable to hold that the terms of Section 44 apply to this case. In the case of Chidambara Pillai v. Ramasami Pillai I.L.R. 5 Mad. 161, it was held that Section 44 prohibits, not the joinder of several causes of action entitling a plaintiff to the recovery of immoveable property, but a joinder with such causes of action of causes of action of a different character, except as excepted in the section quite concur with the interpretation there put upon the provisions of Section 44. Even if the Munsif was right is thinking that Section 44, applied, this was certainly a case in which he should have given leave under that section. The Munsif ignored the desirability of preventing a multiplicity of suits and overlooked the principle which is embodied in the opening section of chapter IV of the Code of Civil Procedure, which deals with the frame of a suit.

3. I concur in the order proposed by ray brother KNOX.

4. The order of the Court will be that the appeal is dismissed with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //