Skip to content


Harbans Tiwari Vs. Tota Sahu and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported in3Ind.Cas.735
AppellantHarbans Tiwari
RespondentTota Sahu and ors.
Excerpt:
civil procedure code (act xiv of 1882), sections 44, 45 - misjoinder of parties and causes of action--pre-emption unit--different sales by different persons to one vendee--one suit for all sales--all vendors wade parties--suit not bad-vendors not necessary' parties to a preemption suit--court's duty not to dismiss but to amend. - - in our judgment the courts below were wrong in holding that the claim was bad for misjoinder of' causes of action and of parties......brought rival claims for pre-emption in respect of the two sales. the vendors did not contest the claim. the vendee denied the existence of the custom alleged by the plaintiff but at the hearing withdrew that objection and admitted that the custom alleged by the plaintiff prevailed. tota alone seriously contested the claim and he did so on two grounds (1) that the plaintiff had no preferential right of pre-emption, and (2) that there was a misjoinder of parties and causes of action. the first plea he abandoned in the court of first instance and admitted that the plaintiff's right was superior to his. it was also admitted that the amount of consideration mentioned in the sale-deeds was the true consideration for the sales. he thus disputed the plaintiff's claim solely on the ground of.....
Judgment:

1. This appeal arises out of a suit for pre-emption which has been dismissed on the ground of misjoinder of parties and cause of action. The facts are these: On the 12th of April 1904, four persons viz: Rajman Tiwari, Rajmangal Tiwari, Musammat Gajra and Bechan Tiwari executed a sale-deed in favour of the defendant Mohar Ali Khan. When the sale-deed was presented for registration, doubts arose as to whether Bechan was of fall .'age and, therefore, it was registered at the instance of Rajman Tiwari, Rajmangal Tiwari and. Musammat Gajra only. It was thus a valid sale of the 3/4 the share of the property owned by the three persons, mentioned above. On the 13th September, 1.906, Bechan Tiwari sold to the same vendee the remaining 1/4th share. In respect of both these sales the plaintiff Harbans Tiwari brought the present suit for pre-emption on the basis of custom alleging that he was entitled to preempt the property. The defendants to the suit were the four vendors, the vendee and one Tota who had brought rival claims for pre-emption in respect of the two sales. The vendors did not contest the claim. The vendee denied the existence of the custom alleged by the plaintiff but at the hearing withdrew that objection and admitted that the custom alleged by the plaintiff prevailed. Tota alone seriously contested the claim and he did so on two grounds (1) that the plaintiff had no preferential right of pre-emption, and (2) that there was a misjoinder of parties and causes of action. The first plea he abandoned in the Court of first instance and admitted that the plaintiff's right was superior to his. It was also admitted that the amount of consideration mentioned in the sale-deeds was the true consideration for the sales. He thus disputed the plaintiff's claim solely on the ground of misjoinder. This plea prevalied in both the Courts below; hence this appeal. We may observe in the first place that if there was a misjoinder of parties and causes '6i action, the suit ought not to have been dismissed but the Court should have amended the plaint and allowed the plaintiff to proceed with the claim in respect of one of the sales. We are, however, of opinion that there was no misjoinder such as would be fatal to the hearing of the suit. Under Section 45 of the Code of Civil Procedure 1882 separate causes of action might properly be joined together against the same defendants provided that the provisions of Section 44 were not contravened. There is no question of the application of Section 44 in this case. Each sale was a distinct cause of action as against the vendee, and as the vendee in regard to each sale was the same individual the plaintiff was competent to unite different causes of action in one suit against the same vendee. The Court below in holding the contrary has relied upon the decision of this Court in Bhagwati Prasad Gir v. Bindeshri Gir 6 A. 106. This case, no doubt, supports the view of the Court below, but we may observe that Mr. Justice Oldfield, who was one of the learned Judges who decided that case, held the contrary sitting with Mr. Justice Brodhurst in Kalian Singh v. Gur Dayal 4 A. 163 and expressed the opinion that one suit could be brought in respect of several sales against the same vendee and that this procedure would be justified by the provisions of Section 45. In our opinion claims for pre-emption in respect of more sales than one can be joined together against the same vendee in one suit. This would not offend against the provisions of Section 44 and is permissible under Section 45. Such a procedure would prevent multiplicity of actions. It is true that in Kalian Singh v. Our Dayal 4 A. 163 it was held that where there were different vendors, the result of their being joined 'together in the same suit would be a misjoinder of defendants, but in that case it was not considered whether the vendors were necessary parties to the suit. If the vendors were not necessary parties, their being joined with the vendee was superfluous. It was held in Lok Singh v. Balwan Singh A.W.N. (1903) 239 following Hira Lal v. Ramjets 6 A. 57 that in a suit for preemption the vendor was not a necessary party. The same view was held in Ram Sarup v. Sital Parsad 26 A. 549 Having regard to these authorities the misjoinder of the vendors was an unnecessary act on the part of the plaintiff and ought not to have the effect of rendering the suit liable to dismissal on the ground of misjoinder. However, this defect if any, could have been easily cured by striking out from the array of parties the names of the vendors. There was, as we have stated above, no substantial defence to the claim; the plaintiff's right was admitted and there was no dispute as to the amount of the purchase-money. It was only on the ground of the alleged defect in the frame of the suit that the claim of the plaintiff was thrown out. In our judgment there is no pretence that the adding of the vendors caused any prejudice to any of the parties or any inconvenience to them. The vendors did not appear and object to the plaintiff's claim. It is they alone who could have pleaded inconvenience but they did not do so. In our judgment the Courts below were wrong in holding that the claim was bad for misjoinder of' causes of action and of parties. There is no other Question in the case and it is clear that if there is no fatal defect in the frame of the suit the plaintiff is entitled to the decree which he asks for. In our opinion there is no such defect. 'We, accordingly, allow the appeal, set aside the decrees of the Courts below, direct that the names of the vendors, defendants, be removed from the array of parties and decree the plaintiff's claim, with costs in all Courts including in this Court fees on the higher scale. We allow the plaintiff three months from this date to pay the purchase-money. In the event of his failing to pay the purchase-money within the time fixed, the suit will stand dismissed with costs in all Counts.


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