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Basanta Priya Dei and anr. Vs. Ramkrishna Das and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 138 of 1958
Judge
Reported inAIR1960Ori159
ActsCode of Civil Procedure (CPC) , 1908 - Sections 17 - Order 1, Rule 3
AppellantBasanta Priya Dei and anr.
RespondentRamkrishna Das and ors.
Appellant AdvocateL.K. Dasgupta, Adv.
Respondent AdvocateP. Kar, Adv.
DispositionPetition allowed
Cases ReferredKaran Singh v. Kunwar Sen
Excerpt:
.....in the cuttack court is bad for multifariousness and also to consider whether the splitting up of the cause of action is likely to result in multiplicity of proceedings. 2 mortgagee defendant is a defeated claimant in proceedings under order 21, rule 58 civil procedure code and thus a rival party interested to deny the plaintiffs' claim. it appears that the defendants raised certain preliminary objections to the frame of the suit, namely that the properties being situate in different places one single suit could nor be instituted in the court of the additional district judge of damoh and secondly that the suit was bad for multifariousness. on the question of multifariousness if such a suit can be brought within the purview of order 1, rule 3 of the code it cannot be said that it is bad..........had combined together in a united front against the plaintiffs in causing mischief to the suit properties, which happened to be partly within the jurisdiction of cuttack court and partly within the jurisdiction of kendrapara court. the common object of the defendants was to interfere with the possession and ownership of the plaintiffs in respect of the suit lands and cause trespass and mischief in respect thereof. the defendants 1, 2 and 4 filed written statement on june 22, 1956 and issues were settled in which a point of jurisdiction was taken as issue no. 4, on the question whether the cuttack court had jurisdiction to try the suit in respect of schedules a and b lands situate within kendrapara jurisdiction. after the amendment of the plaint on july 6, 1956 adding defendants.....
Judgment:
ORDER

S. Barman, J.

1. The plaintiffs, wife and husband, are the petitioners in this Civil Revision directed against an order of the 1st Additional Munsif, Cuttack, in Title Suit No. 14 of 1955 holding that the Court of 2nd Munsif, Cuttack had no jurisdiction to try the suit in respect of the relief relating to Schedule A land, situate within the jurisdiction of the Munsif of Kendrapara, and in so far as the suit relates to defendants Nos. 2, 5 and 6; and the suit was directed to proceed against the rest of the defendants including defendant No. 1 as proforma defendant only in respect of Schedule H property within the jurisdiction of the Munsif of Kendrapara and Schedule C property within the jurisdiction of the Munsif of Cuttack: and the plaint was directed to be amended accordingly.

2. The only question for consideration in this matter is whether the learned Munsif was right in making the order thus splitting up the plaintiffs' alleged cause of action against all the the defendants and in respect of properties situate both within the jurisdiction of the Munsif of Cuttack as also within that of the Munsif of Kendrapara. For this purpose, it is necessary to consider the frame and nature of the suit which the plaintiffs had filed in the Court of the Munsif, Cuttack. It has to be decided whether the suit as filed in the Cuttack Court is bad for multifariousness and also to consider whether the splitting up of the cause of action is likely to result in multiplicity of proceedings. Futhermore, it has also to be considered whether the effect of the order under revision is likely to lead to two conflicting orders made in the two courts -- one by the Cuttack Court in respect of the alleged cause of action and the other by the Kendrapara Court in respect of the same cause of action. Undoubtedly, such likelihood of such conflicting decision in parallel proceedings in more than one court must be avoided.

3. This leads me to consider the facts, circumstances and the back-ground in which the plaintiffs have brought the suit in the Cuttack Court affecting properties situate both within Cuttack and Kendrapara jurisdictions and further as against two sets of defendants -- one set resident within Cuttack jurisdiction and the other within Kendrapara jurisdiction. The material facts, shortly stated, are these: On January 11, 1955 this suit was filed initially against four defendants for a declaration, that the plaintiffs are the owners in possession of A, B and C Schedule lands and that the defendants, Nos. 2 to 4 have no manner of right, title and interest or possession over the same; for an order of permanent injunction on defendants Nos. 1 to 4 restraining them from interfering with the possession of the plaintiffs over the suit lands; alternatively, in case the plaintiffs are found dispossessed of the disputed lands or any portion of the same, then the plaintiffs be put into possession of the same or if, they are in possession, the same may be confirmed; for declaration that the alleged sale deed and the usufructuary mortgage bond of defendant No. 2, is void and inoperative; and for costs and other reliefs. Among the three schedules referred to in the plaint. Schedules A and B are within the jurisdiction of the Munsif of Kendrapara. Schedule C is within the jurisdiction of the Munsif of Cuttack. The suit was brought in the Cuttack Court with certain allegations in the plaint made against defendants, 1, 2, 4, 5 and 6.

The basis of the alleged cause of action is collusion and conspiracy among the defendants in order to oust the plaintiffs from all these properties, situate both within Cuttack and Kendrapara jurisdiction. It appears from record, that there was an amendment of the plaint adding two more defendants, namely defendant No. 5 and defendant No. 6 The main cause of action against the defendants is stated in paragraph 15 of the plaint which; for convenience of ready reference, is set out below:

'That taking advantage of the fact that the plaintiff No. 1 is a pardanashin lady and lives with her husband, the plaintiff No. 2, who is a Government servant and remains at Cuttack for most part of the year, and there being no other suitable person to look after the management of the properties, the defendant No. 1 had made collusive combination with defdt. No. 2 to defendant No. 4 and set them up to oust the plaintiffs from their peaceful possession of the said properties in order to make some illegal gain but in fact neither the defendant No. 3 nor defdt. 2 to defendant No. 4 have any manner of title or possession over the said properties.'

It is clear from the allegations made in the said paragraph 15 that all the defendants had combined together in a united front against the plaintiffs in causing mischief to the suit properties, which happened to be partly within the jurisdiction of Cuttack Court and partly within the jurisdiction of Kendrapara Court. The common object of the defendants was to interfere with the possession and ownership of the plaintiffs in respect of the Suit lands and cause trespass and mischief in respect thereof. The defendants 1, 2 and 4 filed written statement on June 22, 1956 and issues were settled in which a point of jurisdiction was taken as issue No. 4, on the question whether the Cuttack Court had jurisdiction to try the suit in respect of Schedules A and B lands situate within Kendrapara jurisdiction. After the amendment of the plaint on July 6, 1956 adding defendants Nos. 5 and 6 as aforesaid the said newly added defendants filed their written statement on November 22, 1956 but no additional issues were raised.

All the defendants together took up a common point of jurisdiction that so far as Schedules A and B properties situate within Kendrapara, the Cutback Court had no jurisdiction. On December 19, 1957 the defendants Nos. 2, 5 and 6 filed a petition to have the point of jurisdiction decided first as a preliminary point. The matter was fixed to be heard on January 2, 1958 on which date the learned Munsif made the order as aforesaid holding that the Cuttack Court had no jurisdiction so far as Schedule A property in Kendrapara was concerned and the same was excluded from the Cuttack suit. Hence this revision.

4. Mr. L. K. Dasgupta, learned counsel appearing for the plaintiffs petitioners, contended that when it is in respect of different properties situate within the jurisdiction of more than one Court and there is a common set of facts relating to these properties, the suit can be brought in any of the courts where any of the properties would lie. The learned Counsel further contended that the plaint, as filed in the Cuttack Court, being a composite plaint, the suit cannot be split up, namely one suit for Cuttack properties and the another suit for Kendrapara properties. In other words, the parties cannot be directed to take return of the plaint and file the same in Kendrapara Court, because this composite comprehensive suit relates to properties both at Cuttack and Kendrapara. The suit must be filed in one or other of the two courts either at 'Cuttack or at Kendrapara.

In support of his contentions the learned Counsel referred to a kabala dated August 6, 1953 on which the plaintiffs seek to rely on in the suit. The said Kabala relates to properties situate both in Kendrapara and Cuttack, It further appears that the vendor in respect of Schedule A property as also of Schedules B and C properties is common, namely the defendant No. 1. Defendant No. 2 mortgagee defendant is a defeated claimant in proceedings under Order 21, Rule 58 Civil Procedure Code and thus a rival party interested to deny the plaintiffs' claim. Defendant No. 4 is also a rival purchaser in respect of Schedules B and C from defendant No. 1. Incidentally defendant No. 3 was struck off from the suit. The basis of the suit is alleged to be that as a result of combined collusion between defendants 1, 2, 4, 5 and 6, they are trying to oust the plaintiffs from both Cuttack and Kendrapara properties; consequently a common set of facts is to be considered in relation to matters affecting the properties both at Cuttack and Kendrapara.

In other words as I have already said, the defendants are giving a united front against the plaintiffs. The Civil Procedure Code makes wide provisions for meeting such contingencies. Section 16 of the Code gives territorial jurisdiction to courts in respect of properties situate within their respective jurisdiction. Section 17 widens the scope of Section 16 Where a suit is to obtain relief respecting, or compensation for wrong to, immovable property situate within the jurisdiction of different Courts, in such a case the section, provides that the suit may be instituted in any court within the local limits of whose jurisdiction any portion of the property is situate. In this context Order 1, Rule 3 Civil Procedure Code is also relevant. It provides that all persons maybe joined as defendants against whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist, whether jointly, severally or in the alternative, where, if separate suits were brought against such persons, any common question of law or fact would arise.

Reading Section 17 and Order 1, Rule 3 of the Code together, it appears to me that the real test in a case of this nature is whether any common question of law or fact would arise if separate suits were brought. In the present case, in view of the facts and circumstances, as pleaded in the plaint, prima facie it appears that if two suits were filed,--one at Kendrapara and one at Cuttack,-- then such parallel proceedings in two Courts would have led to an embarrassing position namely, that both the courts would have to go into a common question of law and fact which would have arisen in both the courts and ultimately there was likelihood of two conflicting orders being passed by two courts free to take contrary views independently of each other. The intention of the legislature is certainly to avoid such a position. That apart, this certainly would result in multiplicity of proceedings. The only bar to such joinder is that the court has to see that there is no multifariousness, when there is misjoinder of parties and causes of action, which certainly would cause embarrassment and the trial of the action would be prejudiced. That, however, does not appear to be the case here. In the suit, as framed, it appears that there would arise a common question of law and fact, and would incidentally affect the properties which happen to be situated both within Cuttack and Kendrapara jurisdiction.

5. Mr. L. K. Dasgupta relied on a Full Bench decision of the Nagpur High Court in Ramdhin v. Thakuran Dulaiya, AIR 1952 Nag 303 where a suit was filed by three plaintiffs who claimed to be reversioners of two widows and they sought a declaration in the suit relating to various transfers made by the two widows which, they claimed, were not for legal necessity and thus not binding on their reversionary interest. It was admitted that some of the properties in question were situated in Hatta tahsil and some in Jabalpur tahsil. The suit was filed in the court of the Civil Judge, Damoh and though no objection was taken on the ground of multifariousness and want of jurisdiction, the lower Court had held that regard (being had to Order 1. Rule 3 and Section 17 of the Code of Civil Procedure, that Court had jurisdiction to try the suit. On these facts, the Nagpur High Court expressed that the conditions obtaining in Order 1, Rule 3 and Section 17 of the Code of Civil Procedure must be strictly adhered to.

Each case of course must be decided on the facts found therein. The Nagpur High Court, in view of the fact that the matter was not simple, felt that it was necessary to settle the principle on which such claims should be tried together and accordingly the matter was referred to a Full Bench to determine the point. It appears that the defendants raised certain preliminary objections to the frame of the suit, namely that the properties being situate in different places one single suit could nor be instituted in the Court of the Additional District Judge of Damoh and secondly that the suit was bad for multifariousness. It was held that so far as the question of territorial jurisdiction was concerned. Section 17, Civil Procedure Code is a complete answer. That section is intended for the benefit of litigants to seek relief in respect of properties situate in different jurisdiction so that one suit might be instituted where a part of the property is situate, thus avoiding multiplicity of suits.

In the judgment, the Full Bench differed from the view of the Allahabad High Court in Karan Singh v. Kunwar Sen, ILR 1942 All 862: AIR 1943 All 387 which was cited in support of the proposition that before the provisions of Section 17 of the Code can be attracted, the property in question must be capable of being described as a single entity. The Nagpur Full Bench expressed that in their opinion, the soundness of the Allahabad decision was open to doubt and that case seems to stand by itself. This court, with great respect, is also unable to accept the Allahabad view. A person may possess a property situate in different parts of the State in different districts and all that property may be the subject matter of a single suit having reference to a single title, but all the same the property being many items may be situated in different districts within the local limits of the jurisdiction of different courts. But Section 17 has provided that such a suit may be instituted in any of those Courts within the local limits of whose' jurisdiction any portion of the property is situate. On the question of multifariousness if such a suit can be brought within the purview of Order 1, Rule 3 of the Code it cannot be said that it is bad for multifariousness. The Nagpur High Court, after discussing the nature of the pleadings in the plaint, came to the finding that on the facts and circumstances of that particular case, there was no doubt that the common questions of law and fact are bound to arise for determination in respect of each one of the two series of alienations made by the widows.

On the authority of the earlier decisions in the other High Courts referred to in the judgment, the Nagpur Full Bench decided that the suit was not bad for multifariousness. Mr. P. Kar, learned counsel, appearing for the apposite party while commenting on the Nagpur decision cited above, pointed out that in paragraph 16 of the judgment the Nagpur High Court in fact ordered that the suit should be converted into two suits, one relating to alienations by the senior widow and the other in respect of alienations by the junior widow so as to avoid embarrassment to the defendants and so as to bring the case strictly within the terms of Order 1, Rule 3 of the Code of Civil Procedure; and leave was granted to the plaintiffs to amend the plaint accordingly. At first reading this paragraph in the Full Bench decision appeared to be in conflict with the findings of the Full Bench in the foregoing paragraphs of the judgment; but on a little careful reading it is quite clear from the context that the order for converting the suit into two suits was made, because in that particular case, there were really two series of transactions which were being impugned in the suit one by the senior widow and the other by the junior widow and in that view of the position, the Nagpur Full Bench expressed the opinion that it would be convenient to the parties that the Suit should be converted into two suits. Accordingly, the Full Bench made an order, converting the suit into two suits, for the sake of convenience only; but the principles which the Full Bench laid down in the judgment are based on sound reasoning and are applicable to cases, such as the present one before this Court.

6. In this view of the matter, I allow this revision, set aside the order of the learned Munsif anddirect the suit to proceed in respect of the ScheduleA property also, as prayed for. The observationsin this judgment are, however, made without prejudice to the rights and contentions of the parties,that they make during the trial of the suit. Costsof this revision to abide the result of the suit.


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