B.D. Agarwala, J.
1. This is plaintiffs appeal directed against the judgment and decree of the II Additional Civil Judge, Agra, dt. 7th March, 1970,
2. The dispute relates to a portion of the building known as Daulat Niwas situate in Agra The following pedigree serves to elucidate the relevant fact : --
R. B. Daulat Ram
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Kanhaiyalal Krishan Lal Shyam Lal
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Kesri Chand Raghunath Laxman Pd.
3. According to plaintiffs case his father made purchase of one-third share, pertaining to the branch of Shyamlal, in this building in execution of decree dt. 16th. Aug. 1950, in Original Suit No. 104 of 1948. the decree-holder obtained joint possession along with other co-sharers and symbolic possession against the existing tenants on 10th Feb., 1956. The principal relief sought in the suit, instituted in 1958 giving rise to this appeal, is partition of one-third share coupled with actual possession. There are other reliefs claimed also, a reference to which will be made below. The defendants resisted the suit pleading, inter alia, that this was bad for multifariousness. Preliminary issue on this point was decided by the trial Court against the plaintiff on 15th Sept, 1969. On the basis of the findings thereon the entire suit was dismissed on 7th March, 1970.
4. Learned counsel for the appellants urged that the finding on the preliminary issue is erroneous in law and that, in any case, the suit ought not to have been dismissed as a whole. The appellants may be permitted, it is submitted, to elect. For the respondents it was argued that from the allegations in the plaint it is revealed that the suit suffers from misjoinder of parties and causes of action and hence it was rightly held to be bad on ground of multifariousness. It was contended also that it is too late in the day now for the appellants to seek to elect.
5. Upon reference to the plain it will be observed that there are four sets of defendants impleaded : --
i. defendants first set represent branch of Kanhaiylal deceased; they have been impleaded in capacity as co-sharers in the building against whom the relief sought is partition, apart from recovery of the impugned rent etcetera, which they may have realised from the tenants of the one-third portion and mesne profits et cetera.
ii. defendants second set represent the branch of Shyamlal deceased and they are also arrayed in capacity as co-sharers:
iii. defendants third set are the heirs of one Ramlal. In regard to them the allegation is that Ramlal acquired a deed of sale from the descendants of Shyamlal, aforementioned and that deed of sale was sham and should be treated as ineffective. Ramlal had raised objection at the stage when the plaintiff's father sought to recover possession in execution of the decree formally obtained by him; and,
iv. defendants fourth set consist of two parts. Lakshmichand defendant No. 11 is arrayed in dual capacity being a co-sharer and also as claiming to be a tenant in a part of one third portion. Tenancy was terminated, it is pleaded, by notice dated June 28/July 1, 1958. Defendants 10/1 and 10/2 are the descendants of one Kapoor Chand since dead. In regard to them the averment in the plaint is that they have been tenants in a portion of the one-third share and the tenancy was determined in their case too by notice dt. June 28/July 1, 1958.
6. According to the plaintiff, there was a family arrangement whereby one-third share bearing municipal No. 394-A was separated and the plaintiffs' father purchased the specified portion. Partition has been claimed besides separate possession over that one-third share. In the alternative it is pleaded that, if the Court finds, the partition was partial or that some portion was left joint, then in that event the partition be reopened and the plaintiffs' one-third share in the property be separated. Eviction has been sought of the tenant in addition to claim made for arrears of rent and damages for use and occupation, Mesne profits have been claimed against the co-sharers also.
7. Evidently the defendants fourth set in their capacity as tenants, have no interest in the plaint except in the portion of which they are the respective tenants. The person entitled to sue them for eviction and arrears of rent et cetera is the landlord or one claiming through him. The appellants do not dispute that the building in question was governed by the U. P. Act No. III of 1947. The eviction of the tenants sought by the plaintiff rests, therefore, on a distinct cause of action comprising of grounds, if any, available under Section 3 of that Act besides the determination of the respective tenancy by notice under Section 106, T.P. Act. These tenants, as such, are not concerned whether the portion under tenancy falls to the share of the appellants or goes to other co-sharers. Similarly they are not concerned with the issue whether the sale obtained by Ramlal deceased from the branch of Shyamlal is or is not held to be void. The descendants of Kapoor Chand can obviously have no interest in the tenement held by Lakshimchand and vice verses. The causes of action for eviction and recovery of arrears of rent et cetera against the two sets of tenants are distinct inter se as well. There is thus clear misjoinder of parties as well as causes of action in my opinion. In a suit principally for partition the impleadment of co-sharers or those claiming right, title or interest through them to the property is understandable. But this may not be combined with an action for eviction of different sets of tenants based an different grounds.
8. For purposes of Order I, Rule 3(b), Civil P.C., upon which counsel for the appellants relies, it has to be shown that if separate suits were brought against persons joined in one suit as defendants common question of law or fact would arise. This cannot be said to be made out in the present case. In the Corporation of Calcutta v. Radhakrishana Dev, AIR 1952 Cal 222 relied on for the respondents, the Corporation brought a suit to recover arrears of rates and taxes for a certain period against the owners of different premises which originally formed one single premises and decrees were prayed for against the holders of each of these premises. The question raised was whether Order I, R, 3, Civil P.C. could be said to cover such a joinder. This was answered in the negative holding that each of the defendants was individually liable to the Corporation and there was no common link connecting the liability of the different defendants to the Corporation which would justify one in holding that the relief claimed arises out of the same act or transaction or series of acts or transactions. The question of law, it may further be noticed, must be common to all the defendants. If separate suits were filed in the present case the plaintiff may have to establish certain facts which would be similar in each case. But that does not lead to the conclusion that there is common question of law or fact involved in such suits. This is so far as the mis-joinder of the parties is concerned. As for the causes of action, Order 2, Rule 3(1) provides that a plaintiff may untie in the same suit several causes of action against the same defendants or the same defendants jointly. As I explained above there are distinct causes of action against the co-sharers in the property in the first place and the two separate tenants on the other. These causes of action cannot be said to arise against the various defendants jointly. Therefore, Order 2, Rule 3 does not permit a joinder of causes of action as resorted to in the present caste. On account, thus, of the mis-joinder, both of parties and causes of action, the action suffers from multifarious ness.
9. Learned counsel for the appellants placed reliance on Mst. Ramdayee v. .Dhanraj Kochar, AIR 1972 Cal 313. The plaintiffs' case therein was that the plaintiffs' case is that originally the defendant 1 became a. tenant in respect of 23 rooms in this property. These 23 rooms have been described in Schedule A to the plaint. In 1959, alleged the plaintiff, the defendant 1 and her husband the defendant 2 resisted the plaintiffs' ingress to and egress from the premises in suit. In 1960, the defendant 1 started depositing the rent payable in respect of the aforesaid 23 rooms with the Rent Controller but in making these deposits the defendant 1 described herself to be the tenant of the entire premises. The plaintiffs' further allegation was that in January 1961 both the defendants trespassed into the other nine rooms mentioned above and these nine rooms had been described in Schedule 'B' to the plaint. The plaintiff had also alleged that the defendant 2 has converted all the thirtytwo rooms aforesaid into a Factory without the plaintiffs' consent although the original tenancy for 23 rooms was for residential purposes only. It is on these facts that it was held that common questions of facts arising would be that the defendant 1 was a tenant of 23 rooms only and had trespassed into nine rooms along with the defendant 2 (sic) had made with the Rent Controller were not for the entire premises but for 23 rooms only. A common question of law also arose as to the validity of the deposits in view of the relevant provisions of the Rent Control Act. These are the distinct facts on which the plaintiffs' multifariousness was overruled in that case. But the factual situation in the present being as it is, the analogy may not be said to be attracted.
10. In Ranjit Kumar Pal Chowdhary v. Murari Mohan Pal Chowdhary AIR 1958 Cal 710 also cited for the appellants, the question raised was as to the propriety of impleading strangers in relation to whom the allegation was that they obtained transfers from the Karta of the joint family. It was ruled that there was a common question with regard to the stranger defendant, namely, whether properties formed part of the joint estate. The plaintiff had challenged the entire series of transaction by which the ostensible title was transferred to the stranger and hence it could not be claimed to be a case of misjoinder. This also may not be invoked to justify the impleadment of the two sets of tenants, as such, in the suit before us. The defendants of Ramlal claiming title to part of the property through some of the co-sharers may not be said to be adversely affected the suit being for partition, but in so far as the tenants, as such, are concerned, the joinder remains vitiated nonetheless.
11. Learned counsel for the appellants submitted that permission be granted to the plaintiff, now represented by the appellants, to elect in the suit giving rise to the appeal. The prayer has been opposed from the side of the respondents on the plea that it is belated. It was argued that the appellants made no application in this behalf before the trial Court or in this Court till the matter came up for hearing in the course of arguments. The suit was instituted in the year 1958. Preliminary issue on the point of multifariousness was decided by the trial Court on 15th Sept. 1969. This was followed by the dismissal of the suit directed on 7th Mar. 1970. The case remained pending before the trial Court in this manner giving the period of 1958-70. This appeal was brought in 1970 and unfortunately it has taken around fifteen years to be heard. For the time thus taken, the blame cannot be laid on the shoulders of the appellants. This apart, it is not correct to say that there was no prayer made for election from the side of the plaintiff before the trial Court A perusal of the finding recorded on 15th September, 1969, by the trial Court reveals that counsel for the plaintiff argued that the Court had the power to give the right of election to the plaintiff. But the trial Court negatived this with the observation that 'In a suit which is itself bad for multifariousness there is no question of giving a right of election to the plaintiff.' This has been referred to by the trial Judge in the decision finally recorded on 7th Mar. 1970 also. The Court below laboured under the impression that since Order 2, Rule 6 Civil P.C. does not apply a claim for election could not be made. This is erroneous. It is true that to attract Order I Rule 6 the joinder of causes of action should be such as is not bad initially on the basis of multifariousness. But then the Court below ought not to have lost sight of Section 151, Civil P.C. In order that the ends of justice do not suffer and the action set up is not defeated due to a technical difficulty arising, it was both just and incumbent upon the Court below to have accorded on its own motion and in any case on the prayer made for the plaintiff, the opportunity to make the election. The situation may have been different in case the plaintiff had failed to avail of such opportunity. In Kanakarathanammal v. VSL Mudaliar AIR 1965 SC 271 upon which respondents rely, the question related to impleadment of certain parties at a belated stage. It was found that even if the property belonged to the mother of the appellant therein, her failure to implead the brothers, who inherit the property along with her, made the suit incompetent. Upon the matter being heard before the Supreme Court the appellant sought joinder of her brothers. This was declined in the circumstances of that case. This, in my view, cannot be invoked where, as appears from the finding dt. 15th Sept. 1969, the plaintiff claimed the right to elect. But this was wrongfully declined by the trial Court under the impression that no such prayer could be acceded to. -
12. Consideration being had to the discussion made in the above, the appeal succeeds in part and is allowed accordingly. The judgment and decree of the Court below dt. 7th Mar. 1970, are set aside. The case is remanded to the trial Court with the direction that the appellants shall be permitted to make the election within three months from the receipt of the record by the Court below. In the event of the election being not made within the period allowed, the suit shall stand dismissed. Upon the election being made followed by requisite amendment in the pleading, the suit shall be proceeded with expeditiously and tried on merits according to law. The contesting defendant respondents shall be entitled to recover the costs incurred up to this stage from the appellants, who shall bear their own costs.