(1) These cases which raise an interesting question of limitation have their origin in the suit O. S. No. 191 of 1953 on the file of the Subordinate Judge's Court, Tiruchirapalli which was instituted by four subscribers to an auction chit managed by one M. K. Rangachari, the 55th defendant in the suit. The 54th defendant, M. V. Kuppuswami Chettiar, was the father of the 55th defendant and the 56th defendant was the brother of the 55th defendant. The case of the plaintiffs was that the chit business was joint family business of defendants 54 to 56, that the chit under question carried on at 'Kubera Bhavanam', Malaivasal, Tiruchirapalli in which the plaintiffs were interested was only a branch of the main business which was carried on by the 54th defendant at No. 49, Maniakara Street, Tiruchirapalli the family house. Defendants 1 to 53 and defendants 57 to 74 were impleaded as other subscribers to the chit. Some of them, it was alleged as successful bidders at the chit auctions had drawn their chit amounts and their future payments were secured by security bonds. The 55th defendant who was managing the chit at 'Kubera Bhavanam' absconded from 9-5-1953 and the suit was instituted as one for administration of the affairs of the chit through Court, for realisation of the amounts due by the subscriber-defendants and for payment of the sums claimed to be due to the plaintiffs and the other creditors of the chit fund from the realisations, and by defendants 54 to 56 personality and out of their joint family properties. The plaint sets out the amounts severally due to the four plaintiffs and charged the 54th defendant with falsely and dishonestly disclaiming responsibility for the amounts due. The 55th defendant was set ex parte, and in defence defendants 54 and 56 challenged inter alia the maintainability of the suit as one for administration. The question of maintainability of the suit was dealt with as a preliminary issue and the Court accepting the contentions of defendant 54 and 56, that administration in respect of the assets of a living person was not known to law held further that the other chit subscribers were not necessary parties and the suit was bad for misjoinder of parties and causes of action. The plaintiffs appeared to have laid the plaint on the basis of the observation in Timmarsa Pai v. Subba Rao, AIR1928 Mad 256. However the plaintiffs did not challenge the correctness of the decision on the preliminary issue and it is unnecessary to examine whether the view taken on the preliminary issue is correct. having found that the suit as one for administration did not lie, the Court held that logically it followed that the suit as framed was bad for multifariousness though common questions of fact arose for consideration, particularly the claim that the chit was joint family business. Each of the plaintiffs was an independent subscriber and the course of action was distant and different for each though against the same set of defendants. Holding that the joining of four plaintiffs in one suit will embarrass and delay the trial of the suit and that the cause of action could not be conveniently tried and disposed of together, the Court called upon the plaintiffs to elect the relief to be pursued in the suit.
(2) These observations of the Preliminary issues were understood by the plaintiffs to mean that they could not retain the suit as an administration suit with all the other defendant on record, and the plaintiffs filed a memo into Court intimating that they elected to have the trial of the suit in respect of the claim of each of the plaintiffs as a suit for monies due against defendants 54 to 56. By I. A. No. 13 of 1957 they applied for amendment of the plaint to maintain the suit as one by the four plaintiffs for recovery of the amounts due to them from defendant 54 to 56 (the father and two sons) as persons jointly interested in the conduct of the chit. On this application, the Court pointed out that it had not earlier said that white a suit for administration was bad, the plaintiffs themselves could sue together. The Court pointed out further, that it was not open to the plaintiffs to sue together that there was misjoinder of plaintiff and causes of action and that they had to elect as to which of the plaintiffs would proceed with the suit. It observed that the election may be a difficult process for the plaintiffs and that it may be an illusory relief as non of the plaintiffs would be willing to be dropped out of action. A time limit was therefore fixed for the exercise of the option. Against this the plaintiffs filed a civil revision petition in this Court, C. R. P. No. 716 of 1957. The civil revision petition was disposed of finally on 17-2-1959, this Court dismissing the revision and granting the plaintiffs two months' time from the date of the receipt of the records in the lower Court to elect. This Court observed on the revision that the petitioners appeared to be unduly apprehensive on the question of limitation and that as the Court was unable to give relief since it held that the suit was bad for multifariousness, there could be no doubt that a claim if made under 14 of the Limitation Act in a fresh suit to be instituted by one or more of the plaintiffs would be considered with sympathy. After this on 6-7-1959, Arunachalam Pillai, the third plaintiff filed a memo into the trial Court within the time granted by the High Court electing to continue the suit.
(3) The 3rd plaintiff having elected to continue the suit in respect of the claim, the first plaintiff on 16-7-1959 instituted the suit O. S. No. 169 of 1959 for a sum of Rs.5555 the amount as due to him under the chit transactions. He impleaded the father and the two sons as party defendants 1 to 3 in the suit. It is this suit that has come up as S. A. No. 173 of 1963. The second plaintiff instituted his suit for his claim of Rs.4250/- on 11-7-1959 in the District Munsif's Court. Tiruchirapalli. The same was later transferred to the Subordinate Judge's Court, Tiruchirapalli and numbered as O. S. No. 13 of 1962. This suit has given rise to S. A. No. 174 of 1963. The fourth plaintiff whose claim amounted to Rs.1300/- filed his suit on 16-7-1959 as a Small Cause suit before the Subordinate Judge of Tiruchirapalli the same has given rise to C. R. P. No. 261 of 1962 under section 25 of the Provincial Small Cause Courts Act. The main suit originally instituted by all the four plaintiffs and continued by the 3rd plaintiff alone has come up to this Court as S. A. No. 625 of 1962. That suit had been instituted even on 29-7-1953, that is, shortly after the 55th defendant absconded on 9-5-1953, and the cause of action arose. It may be pointed out that though the 3rd plaintiff had elected on 6-7-1959 to continue the suit alone, the consequential amendments of the plaint limiting the plaint claim in O. S. No. 191 of 1953 and striking off the unnecessary parties was ordered on 22-9-1959 in I. A. No. 284 of 1959 on an application taken out by the 3rd plaintiff as petitioner.
(4) Pending the later suits, the 54th defendant died and his legal representatives including his son the 56th defendant continued the defence. The 55th defendant had been adjudicated an insolvent in I. P. No. 43 of 1953 Sub-Court, Tiruchirapalli. But the adjudication was subsequently annulled. So the Court in O. S. No. 191 of 1953 found it unnecessary to have the Official Receiver brought on record in the other suits as they were instituted pending the insolvency without sanction of insolvency Court the 55th defendant was give up.
(5) In O. S. No. 191 of 1953 both the trial Court and the appellate Court concurred in finding that the chit conducted by the 55th defendant was joint family business. While the trial Court made all the three defendants 54 to 56 personally liable apart from the liability of the family properties, the appellate Court held that defendants 54 and 55 alone were personally liable for the suit claim. So far as the 56th defendant, that is the other son was concerned, he was held not personally liable. Of course the joint family property in the hands of all the three were held liable. A decree was therefore given against defendants 54 to 56 for the amount prayed for from the family properties in their hands and against defendants 54 and 55 personally. The trial Court gave its decree on 28-10-1959 and the appellant Court gave its decree 18-3-1961. The other three suits were heard together and disposed of by a common judgment on 6-7-1962. The principal contention on the merits in the first instituted suit was the character of the business, whether the properties of the joint family could be held liable for the suit claim. As pointed out already, both the Courts concurred in holding that the business was joint family business and the family properties were liable though the younger brother who was a student at all relevant period could not be made liable personally. There were some technical objection to the maintainability of the suit but these were found wholly untenable.
(6) In the three later suits also, the character of the business was a material issue but there was a still more important issue the question of limitation. It was the defence that the plaintiffs were not entitled to the benefit of Section 14 of the Indian Limitation Act, 1908. The trial Court overruled the defence in its entirely. On appeal from the decrees in the two original suits, the defence of limitation found favour with the learned District Judge. The suits therefore got dismissed. As to the character of the business, the learned District Judge held that the business was not joint family business of the first defendant and his son, (this was on a concession by the Counsel on behalf of the respective plaintiffs) but as contended for by the Counsel a business in which the father and the absconding son were joint proprietors. The plaintiffs are therefore appellants in these cases in this Court. As regards the character of the business since the finding in appeal is on the basis of a concession, there can be and therefore there is no challenge. The legal representatives of the 54th defendant inclusive of the 56th defendant figure as appellants in S. A. No. 625 of 1962 arising out of the first instituted suit and as petitioners in the civil revision petition arising out of the Small Causes Suit, the decree in these being against them.
(7) In S. A. No. 625 of 1962 where the defendants are the appellants and in the Civil Revision Petition a question raised before me was as to the character of the business. It was submitted that it was neither joint family business as found by the Courts below nor even joint business as found in the other two suits. Learned Counsel would contend that, at the most, it should be held to be the joint business of the father and the absconding son as found in the other suits. This defence is devoid of merits and the fact that in the other suits, the plaintiffs had invited a finding that it was joint business is neither here nor there. There was evidence in the case establishing that the defendants 54 to 56 were members of an undivided joint Hindu family. The learned District Judge in confirming the finding of the trial Court observes that the undivided character of the family was proved beyond all reasonable doubt. The defendant in fact had not pleaded any division. There was evidence to show that the house Nos. 49 and 65 in Maniakar Street Tiruchirapalli were described as belonging to the three members of the family, the father and the two sons. The chit in question was shown as a branch business. The father was admittedly doing chit business and in Exhibit A-21 another katchat book in favour of another subscriber, it is shown that the chit fund was being conducted for three generation. Some of the statements made by the 54th defendant in his evidence indicated that the business was joint family business. Exhibit A-4 was a borrowing by the father and he has stated that it was for expanding chit fund business. There was a later borrowing by the father and the absconding son on hundies in 1950. Of course, at all material periods the other son, the 56th defendant was a student. The character of the chit conducted by the 55th defendant as a joint family concern became more apparent after he absconded. One Abdul Samad Rowther had asked the 54th defendant for the monies due to him by the 55th defendant. The amount came to about Rs.2200/- and the Rowther was able to get from the father the cheques and cash the same towards the amounts duo to him. Besides the above there were other relevant and material evidence for concluding that the chit business was a joint family concern. The finding in the circumstances is one of fact not amenable to consideration in second appeal. No doubt there is the concession in the other two suits. The appeals where the concession was made is after the disposal of the case which gave rise to S. A. No. 625 of 1962. Counsel for the plaintiff is unable to give the reason for the concession. One does not know and it may be that the insolvency of the absconding son might have had something to do with it. The evidence which has been the subject-matter of discussion by the learned District Judge in the other two cases for concluding that the business was that of the father and the absconding son as joint proprietors is normally the evidence that one would and could except to find in a case where the plea is that it is joint family business. The parties are Hindus and it is nobody's plea that it is a divided family and that the father and one of the divided sons were doing the business in partnership. However, it is needless to discuss this accept of the matter further as it does not arise for consideration in the circumstances, set out above.
(8) I shall now take up for consideration the question of limitation which had been argued at some length and is of some importance. Though a point has been taken even in S. A. No. 625 of 1965 that the suit is barred by limitation, there has been no serious attempt to maintain the plea. No doubt, the suit has been originally instituted by four plaintiffs as one for administration. But in the plaint itself, the several plaintiffs had adumbrated their respective individual claims and wanted to be paid the amounts due to them in the administration. When later, it was held that the suit was bad for misjoinder of plaintiffs and causes of action, the 3rd plaintiff elected to continue the suit. The necessary amendments had been granted. The amendments sought were not for making fresh allegations or founding the case on a new cause of action, but to delete what was unnecessary and make consequential changes. The fact that three of the plaintiffs had gone out of the suit and certain amendments were made would not change or alter the date of the institution of the suit and clearly, there can be no bar of limitation to the suit. Authority, if required, for the position is found in Barrow v. Hem Chunder Lahiri, (1908) 35 Cal 496.
(9) But the position is different in respect of the other three suits. I shall take up for consideration first, the two second appeals S. A. Nos. 173 and 174 of 1963 where the learned district Judge has held that the suits are barred by limitation. It may be necessity to restate the relevant dates for convenient reference. The cause of action for the suits arose on 9-5-1953 when the second defendant in those suit (55th defendant in the first instituted suit) absconded and the other members of the family disclaimed liability. The respective plaintiffs all joined together and instituted the suit O. S. No. 191 of 1953 on 29-7-1953 itself. On preliminary objections as to the frame of the suit and to its maintainability the trial Court held that the suit as one for administration would not lie. In that view it went further and held that the four plaintiffs who had independent claims could not continue their claims in a single suit as co-plaintiffs and that the suit was bad for misjoinder of parties and causes of action. The Court directed the plaintiff to elect as to which of them would continue the suit them on file and a time was fixed. The plaintiff came up to this Court in revision and this Court while upholding the order of the trial Court granted them further time to elect. The election was exercised on 6-7-1959, the 3rd plaintiff continuing the suit. The other plaintiff instituted their own suits, and relied on section 14 of the Limitation Act. If section 14 of the Limitation Act could be availed of, then it is not disputed that the suits are in time. The trial Court held that, in the circumstances, the plaintiffs would be entitled to invoke the aid of section14(1) of the Limitation Act to get over the bar of limitation. Section14(1) of the Limitation Act of 1908 runs thus:
"In computing the period of limitation prescribed for any suit, the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or in a Court of appeal, against the defendant, shall be excluded where the proceeding is found upon the same cause of action and is prosecuted in good faith in a Court which from defect of jurisdiction, or other cause of a like nature, is unable to entertain it.
X X X X
Explanation III, For the purpose of this section misjoinder of parties or of causes of action shall be deemed to be a cause of a like nature with defect of jurisdiction".
(10) In order to attract Section 14 of the Limitation Act, there conditions have to coexist; (a) the plaintiff must have been prosecuting the other civil proceeding which he relies upon with due diligence; (b) the earlier proceeding and the later proceeding must be founded on the same cause of action; and (c) the former proceeding must have been prosecuted in good faith in a Court which from defect of jurisdiction or other cause of like nature is unable to entertain if. If the three conditions are satisfied the plaintiffs would be entitled to exclude the time taken by the former proceeding in computing the period of limitation. The lower appellate Court finds that the plaintiffs had prosecuted O. S. No. 191 of 1953 in good faith with diligence till their names were struck off. The appellate Court also finds that the former suit as well as the later suit are both founded on the same cause of action and, in fact, the plaintiffs are seeking substantially the same relief. However, the learned District Judge holds that the earlier suit was not disposed of finally on the ground that the Court could not entertain it owing to defect of jurisdiction or other cause of a like nature. The learned District Judge points out that the other suit O. S. No. 191 of 1963 had been continued having been decreed by the trial Court and confirmed on first appeal. It is remarked that the former suit had not come to an end on the ground that it could not be proceeded with on account of defect of jurisdiction or other causes of a like nature Reference is made to the decision of the Bom. High Court in Varajlal v. Someshwar (1905) ILR 29 Bom 219 and Sadayatan Pande v. Ram Chandra Gopal. ILR 57 All 145 = (AIR 1934 All 688) (FB) where section 14 of the Limitation Act was considered in relation to Order 23, Rule 2 of the Code of civil Procedure. The learned District Judge observes that when Section 14 could apply to a case of an express withdrawal from a suit with liberty to file a fresh suit on the same case of action, the decisions would apply with greater force to a case where the plaintiffs merely or out of a proceeding and allowed their names to be struck out because the suit was bad for multifariousness. Here the learned District Judge overlooks that the defence to limitation is a creature of positive law and therefore cannot be extended to cases which do not strictly fall within the enactment. It is an established canon of construction of the law of limitation not to enlarge the scope of statutory provisions of limitation by analogy or logic. In my view, it is inappropriate to bring in Order 23, Rules 1 and 2 in the present case. The relevant part of Order 23, Rules 1 and 2 for the present discussion may be set out.
"Rule1(1) At any time after the institution of a suit the plaintiff may, as against all or any of the defendants, withdraw his suit or abandon part of his claim (2). where the Court is satisfied (a) that a suit must fail by reason of some formal defect or (b) that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit of part of a claim, it may, on such terms, as it thinks fit grant the plaintiff permission to withdraw from such suit of abandon such part of a claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of a claim, (3) Where the plaintiff withdraws from a suit, or abandons part of a claim, without the permission referred to in sub-rule (2) he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim. (4) Nothing in this rule shall be deemed to authorise the Court to permit one of several plaintiffs to withdraw without the consent of the others.
Rule 2:--In any fresh suit instituted on permission granted under the last proceeding rule, the plaintiff shall be bound by the law of limitation in the same manner as if the first suit had not been instituted."
I may at once point out that in the Limitation Act 36 of 1963, Section 14 Clause (3) specifically make the provision obtained under Order 23. Rule 1 C.P.C.
(11) A perusal of the above provisions of the Code of civil Procedure would show that the applicability of Rule 2 is limited to those suits instituted on permission obtained from the Court for withdrawal of the former suit with liberty to institute a fresh suit. None of the plaintiffs in O. S. No. 191 of 1953 sought the permission of the Court to withdraw from the suit with liberty to institute a fresh suit. There was no application by them oral or otherwise, for leave to withdraw or abandon any part of the claim and institute a fresh suit. The circumstance in which Section 14 could be availed of where there is no determination of the cause in a previous proceeding on grounds like misjoinder of parties or cause of action is brought out, if I may say son with respect tersely thus by Courts Trotter J. sitting with Philips J. in Arunachellam Chettiar v. Lakshmana Ayyar, ILR 39 Mad 936= (AIR 1916 Mad 944).
"If we treat the Section of the Limitation Act as unconcerned with suits which are voluntarily abandoned or withdraw the sections do not need reconciling as such deals with a separate subject-matter. The Limitation Act deals with suits which are terminated by the action of the Court while the Civil Procedure Code deals, as the heading of the order shows, with cases where the suits are withdraw or abandoned by a voluntary act of the plaintiff."
It cannot be said in the present case that the three plaintiffs had gone out of the prior suits by any voluntary act of theirs. When among the four plaintiffs the 3rd plaintiffs elected to continue the suit, the plaintiffs were not voluntary agents; the plaintiffs in the former suit were bound by the decision of the Court that they should elect which of them would purse the suit fixing a date for the plaintiffs to so elect.
(12) As pointed out by Varadachariar J. in Guruvabhotlu v. Jogayya, 42 mad LW 256 at p. 257=(AIR 1935 Mad 696 at p. 696)
"It is well established law that if a suit is so framed as to be open to the charge of multifariousness, the plaintiff must elect the cause of action which he is prepared to prosecute or the defendants against whom he will proceed. In respect of the cause of action which he is bound to give up, as a result of the Court's decision that the suit is bad for multifariousness, he cannot be regarded as a voluntary agent who withdraws, his claim in the sense contemplated by O. 23, R. 1. It is no doubt open to him to choose which cause of action he shall pursue but the law compels him to give up on cause of action or the other. Therefore, to the extent to which he gives up one cause of action or the other of the causes of action in the suit, he is really acting under compulsion of the law and not by voluntary choice. It is therefore unreasonable to apply Order 23, Rule 1 to cases in which a plaintiff is obliged to give up certain defendants and the cause of action against them, in obedience to the Court's view that the suit as framed is bad."
It must be stated that there has been no contention in the subsequent suits, and in my view property, that the suits are not maintainable for the reason that no liberty had been obtained to institute fresh suits. On the election of the 3rd plaintiff, the other plaintiffs had been struck off the record, and they ceased to be parties to the suit. Under O. 1 R.10(2) C.P.C. the Court may at any stage of the proceedings even without the application of any party order the name of any party improperly joined whether as plaintiff or defendant be stuck out. It is not as if the suit so far as these plaintiffs were concerned was dismissed, rather they had been dismissed from the suit. In Jujishti Panda v. Lakshmana, AIR 1933 Mad 435 Beasley C. J. sitting with Bardswell J. observed at page 436:
"It is quite clear that where parties have been wrongly joined and the suit against them is given up by the plaintiff or upon that ground he exonerates them, or there is a finding come to that they have been wrongly, joined, then the correct procedure is so strike out their names is having been improperly impleaded. On the exoneration or the striking out of the names of persons on the ground of misjoinder they ceases to be parties to the suit."
(13) Mr. A. Sundaram Iyer, learned Counsel for the defendants in fact did not seriously urge that Order 23, Rules 1 and 2 applied, but it was pressed that the earlier suit was being proceeded with and had not come to an end. it was argued strenuously that the Court had not in the former suit said that it was unable to entertain the suit. But the order of the Court is substantially to the said effect in respect of the plaintiffs whose names are struck off. To entertain in the context, means to receive, or admit, or retain, with a view to consider and decide on the merits. The original plaint contained their individual claims also against the same set of defendants but the Court held that different claims could not be adjudicated in out suit. The suit could be proceeded with only in respect of one of the plaintiffs; it was an error in the frame of the suit that could not be refitted by a simple amendment. An attempt to that end was made and failed. The Court could not itself discriminate and strike off any three of the plaintiffs of O.I. Rule 10(2) C.P.C. On the analogy of O. I. R. 2 C.P.C. the Court gave opportunity to the plaintiffs to elect and on the election three of the plaintiffs were struck off. The three plaintiffs went out of the suit with their claims for the reason that the Court was unable to entertain the suit so fat as they were concerned.
(14) The decision in (1905) ILR 29 Bom 219 no doubt bears a similarly to the present case. That was also a case where one of the plaintiffs in the earlier suit had to go out on grounds of multifariousness. Two plaintiffs, a father and son, originally filed the suit for recovery of damages for assault. The defendants pleaded misjoinder of parties and causes of action and succeeded in their plea in the High Court (see Varajlal v. Rama, (1902) ILR 26 Bom 259) and the High Court "emitted the case to the Court of First Instance directing return of the plaint for amendment and granting permission to the plaintiffs to elect which of them should proceed with the plaint already filed Under the provisions of Section 373 (now Order 23 Rule 1) leave was granted to the plaintiff whose name was stuck out to file if so advised a fresh suit in respect of his cause of action. The father elected to continue the suit and the son filed a fresh suit and it was held that Section 374 corresponding to the present Order 23, Rule 2 applied with the result that the former suit could not be taken into consideration in computing the period of limitation at all. The decision is leaned also on the view that Section 14 of the Limitation. Act would not apply to the case as the former suit did not fail for want of jurisdiction or any defence of like nature. Before the Limitation Act of 1908 there was a conflict of decision on the question. This decision cannot, in the circumstances, apply to the cases on hand. These are not cases where the plaintiffs had been granted leave to withdraw with liberty to institute fresh suits on the same cause of action.
(15) Considerable reliance was placed by the learned Counsel for the defendants on ILR 57 All 145 =(AIR 1934 All 688) (FB). That is not a case of one of the plaintiffs being stuck off. The plaintiff had earlier instituted a suit in the same cause of action against two sets of defendants. Objection was taken that the suit was multifarious because different causes of action arising out of different defendants had been wrongly joined together. On the Court expressing its opinion that the frame if the suit was bad and calling upon the plaintiff to elect against which of the defendants he would like to proceed against, the plaintiff filed an application under Order 23, Rule 1 of the Code of Civil Procedure, for withdrawal of the suit against one set of defendants with liberty to institute a fresh suit against them afterwards. The question of limitation arose in the second suit which was filed on the permission granted. Sulaiman C. J. who delivered the leading judgment of the Full Bench observed at page 147 (ILR All) = (at p. 691 of AIR)
"Prima facie it would seem that the plaintiff is entitled to get the time taken in the previous suit excluded, because the Court had actually ordered that he must elect whether he would proceed against one set of the defendants or against the other set, and in that sense the Court had expressed its opinion that it was unable to entertain the suit as filed."
But referring to the provisions of Order 23 C.P.C.. it was stated:
"The provision in Order 23. Rule 2 is a special provision relating to suits, as a particular case; whereas the provision in section 14 of the Limitation Act is a general provision applying to all suits which have failed for want of jurisdiction or causes of a like nature. In case of a real conflict, the special provision would therefore prevail and must be treated as an exception to the general rule. It, however seems that there is no real conflict between the two Acts. In the first place, if one Act provides that a previous suit should be treated as non-existent then it cannot be taken into account by the Court at all when applying the provisions of section
14. In the second place, the words "is unable to entertain it" do not merely mean that the Court has expressed its mind that the suit is defective, but must mean that the Court has passed an order terminating the suit or proceeding on the ground that there is a defect of jurisdiction or other cause of a like nature on which the suit must fail. So long as the court has not terminated the proceeding but has merely given an option to the plaintiff to choose one of two alternatives and the plaintiff voluntarily chooses one, it cannot be said that the case falls within Section 14 of the Limitation Act. Here it is not an act of the Court which terminates the suit or proceeding, but the voluntary act of the party which does so."
Learned Counsel placed considerable emphasis on the above observations and contends that here is a case of the plaintiffs exercising their option to elect an going out of the suit. In my view, the observations must be read in the context of the facts of the case. The case was one where leave under Order 23 Rule 1 had been applied for and obtained and the subsequent suit was on such leave. The next paragraph brings out the position:
"Order 23, Rules 1 and 2 therefore apply to cases where the plaintiff on discovering that his suit must fail either by reason of some formal defect or that there are sufficient grounds for withdrawing the suit applies voluntarily for the withdrawal of the suit and asks for permission to file a fresh suit and the Court grants his prayer. Where as Section 14 of the Limitation Act would apply to a case where the Court by its own order has terminated the suit or proceeding and has stuck off the case from its file on the ground that either it has no jurisdiction to entertain it of that there is some cause of a like nature which makes it impossible for the court to entertain it".
The learned Judge refers in this connection to the decision of our Court in ILR 39 Mad 936 = (AIR 1916 Mad 944) cited earlier. If the observations of Sulaiman C. J. in the previous paragraph are to be read as the Counsel for the defendants would have them, they would run counter to the view of Varadachariar J. in 42 Mad LW 256 = (AIR 1935 Mad 696) set out above. a view similar to that of Varadachariar J. finds expression in a Division bench Judgment of the Bombay High Court in Kanahayalal v. Hiralal, AIR 1947 Bom 255 where it is observed:--
"The order of the Court compelled the plaintiffs to choose which cause of action they would pursue, and they never voluntarily withdraw or abandoned any claim in the sense contemplated by O. 23 R. I Civil Procedure Code..........................The election to proceed with one cause of action against one set of defendants did not in such a case amount to the withdrawal or abandonment of the other cause of action whose inclusion in the suit resulted in multifariousness."
Where the Court in exercise of the powers under the Code Orders a party to adopt a procedure it is difficult to hold, that the party voluntarily chooses the procedure.
(16) A case having close similarity to the instant case was the subject of consideration in the Full Bench decision of the Allahabad High Court in Mathura Singh V. Bhawani Singh (1900) ILR 22 All. 248 at p. 253. The Full Bench was occasioned by the conflict of decisions that prevailed prior to 1908 as to whether misjoinder of parties or of causes of action could be deemed to be a cause of a like nature with defect of jurisdiction within the meaning of Section 14 of the Limitation Act. 1877.
There the plaintiff sought to exclude under Section 14 of the Limitation Act, 1877, the time spent in a suit which he had brought together with two other plaintiffs. The latter suit, was for contribution based on a registered document executed by the defendants. The plaintiff's case was that he and the defendants were liable under a decree held by a certain Maharajah, that a property of his was sold in execution of that decree in excess of his liability and that under the agreement he was entitled to recover the excess from the defendants. In the former suit, the claim of the co-plaintiffs was similar. The suit was founded on the same agreement for the same relief, the same set of defendants being liable to each of the plaintiffs, each plaintiff alleging that his property had been sold in excess of his liability under the Maharaja's decree. The former suits was dismissed in the Court of First Instance on the ground of misjoinder of plaintiffs and cause of action. On appeal, it was held in the High Court that the trial Court was right as regards the misjoinders, but it was held that the trial Court instead of dismissing the suit ought to have under section 53 of the old Code corresponding to the present Order 7 R. 11 C.P.C. returned the plaint for amendment by striking out all the names of the plaintiffs except one who should be allowed to continue the suit alone. For this purpose, the suit was remanded to the trial Court with a direction to the trial Court to return the plaint for amendment in the manner stated. The trial Court directed the amendment to be carried out within a fixed time and two of the plaintiffs were struck off from the plaint and the suit was continued by one of the plaintiffs alone. A few days later the second suit which came up before the Full Bench was instituted by one of the plaintiffs who had been struck off from the former plaint. Strachey C. J. who delivered the leading judgment stated:
"The question is whether Section 14 applies........I think that by reason of the misjoinder in the former suit the Court was unable "to entertain" that suit, by which I mean was unable to consider the question involved in that suit. It was unable to entertain it by reason of Sections 26, 31 and 45 of the Code of Civil procedure (Present Order 1 Rules and 9 and Order 2 Rule 3) which show that plaintiffs cannot join in respect of distinct causes of action against the same defendants. In such a case either the plaint must be rejected, if not amended so as to remove the defect (and here from the nature of the case no amendment could have remedied the defect, so as to make that suit maintainable by all the plaintiffs) or else the suit must be dismissed."
In that view holding that inability to entertain a suit for misjoinder of plaintiffs and causes of action was of like nature to defect of jurisdiction now specially provided for by Explanation III to Section 14 and applying Section 14, the plaintiff was found entitled to deduct the whole period of the pendency of the suit from the date of its institution till the return of the plaint for amendment to be carried out within the period fixed. The following reference to this in the latter Full Bench decision ILR 57 All. 145 at. p. 150 =(AIR 1934 All. 688 at p. 692) is significant.
"In the Full Bench case no question appears to have been either urged or considered as to whether the striking off of the names of all the plaintiffs amounted to an abandonment of the claim or a withdrawal of the claim, nor was any question raised as to the applicability of the corresponding Section of the old Act, namely Section 374 (present O. 23 R. 2 of the Code of Civil Procedure)".
(17) In the Bombay case (1905) ILR 29 Bom 219, (1900) ILR 22 All. 248 wad distinguished inter alia as one where the original suit was not withdrawn under Section 373 (Order 23, Rule 1) of the Code Neither can the case Virupakshappa v. Veerabhadra AIR 1943 Mad 80 held the defendants a specific permission was granted in the case to withdraw the suit with liberty to file the fresh suit.
(18) In S. W. Rajayya v. Venkateswar Rao where there was a specific issue on the question of misjoinder and when the pleader for the plaintiff found it difficult to maintain his stand as to the frame of the suit while the Court insisted that the suit was bad for multifariousness, he expressed his willingness to continue the suit against the 2nd defendant alone. Thereupon the trial Judge ordered the name of the remaining defendants to be stuck off and directed the plaintiff to file fresh suits within three days. The question was whether the later suits were barred by limitation. A Division Bench of the Andhra Pradesh High Court observed:
"A perusal of the order 9-7-1953 shows that there was no application by the plaintiff either orally or in writing to permit him to withdraw the suit with liberty to bring fresh suits, as has been the case in the three authorities cited by the Advocate for the defendants. When the Court insisted that the suit was bad for multifariousness, the pleader for the plaintiff merely expressed his willingness to continue the suit as against the second defendant.
Thereupon the Court did not order the suit to be withdraw but merely made an order to strike off the names of defendants 1, 3 and 4. That part of the order would to our mind fall under O. 1. R.10(2) C. P. Code. The fact that the Court further directed the plaintiff to file fresh plaints within three days would not attract the provisions of Order 23.R.1(2) because of the act of the Court.
The authorities insist upon the voluntary act of the plaintiff and not that of the Court. If the act is that of the Court, the party suing cannot be mulcted for what he has not done. In these circumstances and for the reasons given above, we are of opinion that the provisions of R. 2. O. 23 did not come into operation and the plaintiff was not debarred from claiming the benefit of section 14 of the Limitation Act."
In the light of the above decisions, it is clear that those plaintiffs who were struck off from the former suit O.S. No. 191 of 1953 are entitled to deduct the period of the pendency of that suit from the date of its institution till 6-7-1959 when the third plaintiff elected to continue that suit alone. The statutory bar of Order 23 Rule 2 C.P.C. does not apply to the facts of this case. This is a case where the Court found itself unable to maintain and entertain the claim of all the plaintiffs in one suit and gave them an option to elect as in (1900) ILR 22 All 248. Accordingly I hold that the view of the trial Court that the suits are not barred by limitation is correct.
(19) In the result, the second appeals. S. A. Nos. 173 and 174 of 1963 have to succeed and are allowed. However, the decree of the trial Court will have to be modified granting a decree against defendants 3 to 6 therein to the extent of the assets of the deceased Kuppuswami Chettiar in their hands as his legal representatives. Subject to the above modifications, the decrees of the trial Court in O.S. No. 169 of 1959 and O.S. No. 13 of 1961 are restored. The plaintiff in each of the two suits will be entitled to his costs in the trial Court and in this Court in Second Appeal. The decree and judgment of the appellate Court in these cases are set aside, the parties will bear their respective costs therein in the lower appellate Court. S. A. No. 625 of 1962 and C. R. P. No. 261 of 1962 are dismissed and in the circumstances without costs.
(20) No leave in the second appeals.
(21) Order accordingly.