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Kali Charan Vs. Ganesh Prasad and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal Nos. 2811 of 1969 and 164 of 1970
Judge
Reported inAIR1971All501
ActsCode of Civil Procedure (CPC) , 1908 - Order 1, Rules 3 and 9
AppellantKali Charan
RespondentGanesh Prasad and anr.
Appellant AdvocateA.N. Varma and ;S.N. Varma, Advs.
Respondent AdvocateM.P. Singh, Adv.
DispositionAppeals allowed
Excerpt:
civil - tenancy - suit against the two defendants not based on same act or transaction - tenancy was separate in distinct portion of the house - impleading two defendants to a suit against whom there are independent cause of action is neither a case of misjoinder nor non-joinder of parties - single suit is not maintainable and incompetent - fresh suit may be filed - rule 9 and rule 3 of order 1 of code of civil procedure,1908. - - that appears to be the main reason on which the learned munsif held that the suit thus brought was not bad......code did not permit a single suit against the two defendants who could not be joined in one single suit as defendants, as the right which the plaintiff asserted against each of them was based on different transactions and not on a common transaction. the learned munsif rejected the plea on the ground that since the house in which the two separate tenancies were created in favour of the two defendants was one single unit of which the plaintiff was the owner, the two defendants could be joined in one suit. that appears to be the main reason on which the learned munsif held that the suit thus brought was not bad. on other material issues the finding having been recorded against the defendants a decree for their eviction was passed. the two defendants then filed separate appeals in the lower.....
Judgment:

K.B. Asthana, J.

1. These two appeals can be decided by a common judgment as a common question of law arises.

2. The plaintiff respondent admittedly is the landlord, while the respective defendants appellants in the two appeals are tenants in separate portions of a house on separate engagements. What the plaintiff landlord did was that after terminating the respective tenancies of his two tenants in the separate portions of the house, filed one single suit for their eviction pleading a separate cause of action against each based on their separate engagement of tenancy. An objection was raised on behalf of the defendants that the suit was incompetent as the provisions of Order 1. Rule 3 of the C. P. Code did not permit a single suit against the two defendants who could not be joined in one single suit as defendants, as the right which the plaintiff asserted against each of them was based on different transactions and not on a common transaction. The learned Munsif rejected the plea on the ground that since the house in which the two separate tenancies were created in favour of the two defendants was one single unit of which the plaintiff was the owner, the two defendants could be joined in one suit. That appears to be the main reason on which the learned Munsif held that the suit thus brought was not bad. On other material issues the finding having been recorded against the defendants a decree for their eviction was passed. The two defendants then filed separate appeals in the lower appellate court against the judgment and decree of the learned Munsif. The two appeals were consolidated. Again the objection as to the competency of the suit was reiterated in the lower appellate court but was repelled substantially on the same ground on which the learned Munsif had repelled it. The finding on other material issues having been affirmed the appeals were dismissed. The defendants tenants have now filed two separate appeals before this Court.

3. It is clear to my mind that to the suit giving rise to these appeals the provisions of Rule 3 of Order 1, Civil P. C. were not applicable. The suit against the two defendants was not based on the same act or transaction or series of acts or transactions. The tenancy of each one of them was separate in distinct portions of the house. The transaction between the plaintiff with each of the defendants was separate and distinct. Termination of the tenancy of one and his refusal to vacate the premises gave rise to a separate right to the plaintiff as against that tenant. Merely the other accommodation let out to the second defendant being in the same house and the second defendant also having refused to vacate after termination of his tenancy, would not make his refusal the same act or transaction or series of the same act or transaction as the act or transaction of the first defendant. The suit as brought, in my opinion, was incompetent.

4. The next question urged was that Rule 9 of Order 1, Civil P. C., would apply and the plaintiff's suit cannot be thrown out. I see some difficulty in applying Rule 9 to a case where under Rule 3 of Order 1 the suit is incompetent. To my mind impleading two defendants to a suit against whom there are independent causes of action is neither a case of mis-joinder nor non-joinder of parties. The suit as brought was incompetent and deserved to be thrown out.

5. However, a prayer has now been made before me on behalf of the plaintiff that he be allowed to withdraw from the suit. I would be hesitant to allow such a prayer at this late stage when the plaintiff persistently contested the true legal position in the courts below. However, it being a matter between the landlord and tenants and the dismissal of this suit would not have prevented the landlord again to file a suit for eviction after termination of tenancy, a permission to withdraw from the suit granted at this stage would not seriously prejudice the defendants.

6. Accordingly, I allow the appeals, set aside the judgment and decree of the court below. Instead of dismissing the plaintiff's suit I permit the plaintiff to withdraw from the suit with permission to file fresh suits. The plaintiff shall pay one set of costs to the defendants of all courts.


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