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(Velugubantla) Papamma Vs. Ravula Ramaswami and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtChennai
Decided On
Reported inAIR1933Mad622
Appellant(Velugubantla) Papamma
RespondentRavula Ramaswami and anr.
Cases ReferredBal Gobind Singh v. Gaja Lakshmi Dasi
Excerpt:
- - vigneswaradu air 1928 mad 840 and that such causes of action cannot be combined in one and the same suit and that to a case like the present, section 17, civil p......alleged in his written statement is thatno claim against the cocanada property can exist under the suit mortgage,i.e. that the property against which be got an order of attachment is quite different from the property covered by the mortgage and that his title to the property in question is paramount to that of the plaintiff. in such a case it is true that defendant 3 is not a necessary party under order 34, rule 1, to a suit instituted on the mortgage by the plaintiff, but this plea does not dispose of the matter. the essential question is whether the two causes of action alleged against defendants 1 and 3, distinct though they may be, can be combined against them in one and the same suit. the law applicable will be found in order 1, rule 3, civil p.c., which runs as follows:all persons.....
Judgment:

Madhavan Nair, J.

1. The plaintiff's suit is to enforce a mortgage deed dated 4th June 1924, executed by defendant 1 with reference to certain lands mentioned in Sch. A to the plaint, and his share in the mill referred to in Sch. B situated at Ramachandrapur. The machinery of the mill was subsequently removed to Cocanada where a new mill was constructed with the same materials. This new mill is mentioned in Sch. C. Before the removal, the mill lay within the jurisdiction of the Rajahmundry Sub-Court. The plaintiff now seeks a decree against the lands and defendant 1's share in the mill at Cocanada in the place of that at Rajahmundry. Defendant 2 is an assignee of the Sch. C property. Defendant 3 obtained a decree against defendant 1 in a suit for money, O.S. No. 192 of 1925, on the file of the Ramachandrapur District Munsif's Court and in execution, attached defendant l's share in the mill at Cocanada. Defendant 4 obtained a money decree against defendant 3 and in execution thereof attached the decree obtained by defendant 3 and proceeded to sell the property, whereupon the plaintiff intervened as a claimant asserting her rights to the property and objecting to the attachment. Her claim was dismissed. In the present suit the plaintiff asked the Court to set aside this summary order also along with the other reliefs claimed by her.

2. Defendant 3, who is a resident within the limits of the Cocanada Sub-Court, contends that, in so far as he is concerned, the Rajahmundry Sub-Court has no territorial jurisdiction to try the suit. His contention was that the cause of action with respect to the declaration asked for, is the attachment made at his instance, and the order passed by the Cocanada District Munsif's Court on the claim petition put in by the plaintiff, and that this arose only within the limits of the Cocanada Sub-Court. This contention was the subject-matter of issue 4:

Whether as pleaded by defendant 3, this Court has no jurisdiction to try the suit against him.

3. The learned Subordinate Judge accepted the contention of defendant 3 and dismissed the plaintiff's suit as against him and defendant 4 holding that as neither of the conditions required under Clause (2), Section 20, Civil P.C., viz. (1) that permission of the Court should be obtained before joining him (defendant 3) in the suit; or (2) that he should have acquiesced before being sued at Cocanada, had been complied with, the suit was not maintainable as against him. Consequently the suit against defendants 3 and 4 was dismissed while against the other defendants it was decreed. The present appeal is directed against the decree dismissing the suit as against defendants 3 and 4. Section 17; Civil P.C., states that

where a suit is to obtain relief respecting, or compensation for wrong to, immovable property situate within the jurisdiction of different Courts the suit may be instituted in any Court within the local limits of whose jurisdiction any portion of the property is situate.

4. The appellant's learned Counsel relies on this section and states that as the property in the suit is situated within the jurisdiction of two different Courts, viz. Rajahmundry and Cocanada, the appellant can institute the suit either at Rajahmundry or at Cocanada and that therefore the suit instituted at Rajahmundry cannot be dismissed though defendant 3 is resident at Cocanada. On the side of the respondent, it is contended that defendant 3 is not a necessary party to a suit on the mortgage against defendant 1, that the cause of action against the latter and the enforcement of the mortgage is quite distinct from the cause of action against defendant 3 which is the setting aside of the summary order on the claim petition: see Venkatasubba Rao v. Vigneswaradu AIR 1928 Mad 840 and that such causes of action cannot be combined in one and the same suit and that to a case like the present, Section 17, Civil P.C., is inapplicable. This main plea of defendant 3 as alleged in his written statement is that

no claim against the Cocanada property can exist under the suit mortgage,

i.e. that the property against which be got an order of attachment is quite different from the property covered by the mortgage and that his title to the property in question is paramount to that of the plaintiff. In such a case it is true that defendant 3 is not a necessary party under Order 34, Rule 1, to a suit instituted on the mortgage by the plaintiff, but this plea does not dispose of the matter. The essential question is whether the two causes of action alleged against defendants 1 and 3, distinct though they may be, can be combined against them in one and the same suit. The law applicable will be found in Order 1, Rule 3, Civil P.C., which runs as follows:

All persons may be 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.

5. Under this provision a plaintiff can in the same suit combine distinct causes of action against several defendants provided that the relief claimed should arise from a series of acts or transactions and that there is some common question of law or fact arising in the suit. This has been laid down in Govindaraja Mudaliar v. Alagappa Thambiran AIR 1926 Mad 911 In that case it was pointed out that:

while on the one hand we should not allow the Court to be embarrassed by the joinder of a number of totally unconnected controversies in one suit, we should not unduly restrict the scope of the rules regarding the joinder of parties and cause of action, so as to lead to unnecessary multiplicity of suits': see also Muthuswamy v. Ponnagya : AIR1928Mad820 .

6. In the present case what we are specially concerned with is the question whether a common question of facts or law arises between the parties. The common question alleged to arise is one of fact. The question is, whether the Sch. C property forms the subject-matter of the mortgage as contended for by the plaintiff, or whether it is a different property to which the mortgage will not apply as contended for by defendant 3. This question, we think, is one common to both the parties. If a separate suit is to be instituted against defendant 3, this will be the very question that will have to be decided in that suit. The plaintiff in order to succeed in this suit against defendant 1 will have to show that the mortgage can attach itself to Sch. C property. The question to be decided being the same, we cannot see why that question cannot be decided between the two parties in this suit itself. If the appellant's contention is accepted, it is obvious that a second suit in which the same question will be raised will be avoided. In our opinion there is no misjoinder of parties and causes of action in the present suit. That being so, there can prima facie be no objection to the application of Section 17, Civil P.C., to the present case. No authorities except the dissenting judgment of Coxe, J., in Bal Gobind Singh v. Gaja Lakshmi Dasi (1913) 21 IC 438 has been cited in support of the proposition that Section 17, Civil P.C., applied

only when there was one cause of action with respect to property situated in different districts and not to cases when the causes of action were in themselves distinct.

7. But the learned Judge's view of Order 1, Rule 3, Civil P.C., is different from the view of this Court and it also differed from the judgment of Ray, J., which prevailed in that case. We would for the above reasons hold that the Rajahmundry Court has jurisdiction to try the present suit against defendant 3. The decree of the lower Court in so far as it has dismissed the suit against defendants 3 and 4 is set aside. The lower Court will now try the suit and dispose of it according to law dealing with all the points arising on the issues between plaintiff and defendants 3 and 4. The costs will abide the result. The court-fee will be refunded.


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