1. This is an appeal by the plaintiff against the decrees of the Courts below which dismissed his suit as barred, by Order 23, Rule 1, Civil P.C. This objection arises in consequence of what happened in O.S. No. 325 of 1917 on the file of the District Munsif of Yellamanchili. The present defendants were defendants 4 and 5 in that suit. That suit-had been instituted against two sets of defendants, in respect of two sets of properties, and an objection was accordingly raised that the suit was bad for multifarious ness. This objection was made the subject of issue 5 in that, case and when the case came on for trial what happened is thus recorded in para. 6 of the judgment in that suit (Ex. C):
The defect is cured by the plaintiff's own admission that there is multifariousness inasmuch as he practically concedes that he cannot prove any collusion between the two sets of defendants. He has accordingly confined this suit to item 1 in which defendants 1 to 3 alone are interested. Defendants 4 and 5 are given up and they are awarded their costs.
2. At the end of the judgment the District Munsif took care to say: 'Plaintiff will pay defendants 4 and 5 their costs-of this suit.' When the present suit-came on for trial, the learned District-Munsif thought fit to raise an objection of his own accord, that what happened; in the former suit amounted to a withdrawal of the suit as against the present defendants and that as it was done without the permission of the Court, or leave-obtained to bring a fresh suit, the present suit was barred under Order 23, Rule 1, Civil P.C. I can only express my regret that the learned District Munsif should have thought fit to go out of his-way to discover this objection. The learned District Judge sympathised with the plaintiff, but he thought that in the absence of authority directly covering the point it was not in his power to help the plaintiff. I do not think the-law is so helpless as that. Order 23, Rule 1, must be read consistently with the other provisions of the Code. 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 Order 23, Rule 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 one cause of action or the' other. Therefore, to the extent to which he gives up one 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 for multifariousness.
3. The argument of the Courts below in the present case, if I understand it aright, is that the plaint was not in fact amended pursuant to the decision on the issue of multifariousness. I do not see that that makes any difference. We are only concerned with the question whether there has been an abandonment within the meaning of Order 23, Rule 1. But even in answer to this form of stating the objection, it is sufficient to refer to the reasoning of the Pull Bench in Abdu Sac v. Sundara Mudaliar 1930 Mad. 817 and the cases referred to theroin, that in determining the effect of what has happened, the Court should not confine its attention merely to see whether particular names of paragraphs have been scored out or not, but interpret the situation in the light of the pleadings and the judgment in the case. [Where the Court has held that the parities and causes of action have been improperly combined, and the plaintiff 'thereupon elects to confine the suit to 'one of the causes of action, the result in 'the eye of the law is that the suit is non-existent so far as the parties and the cause of action given up are concerned. There is no question of any 'withdrawal.' The District Judge has read the District Munsif's judgment in the former suit as amounting to a 'dismissal' of that suit as against defendants 4 and 5. As I have pointed out, the District Munsif has taken care not to say so and para. 6 of his judgment which I have set out already makes it clear that defendants 4 and 5 were awarded their costs only on account of the decision on the misjoinder issue. If however it should be taken that the suit was dismissed as against them, the plaintiff's position is certainly better.
4. The dismissal on the ground of misjoinder cannot certainly operate as resjudicata : and there will be even less scope for the application of Order 23, Rule 1, if the Court is held to have dismissed the suit, for no question of 'abandonment' will then arise.
5. The second appeal is allowed, the decrees of the Courts below are set aside and the case remanded to the Court of first instance for disposal on the merits. Refund of stamp duty both here and in, the lower appellate Court. The plaintiff will be entitled to his costs here and in the lower appellate Court. The costs-in the first Court will be provided for in the revised decree.