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The Corporation of Calcutta Vs. Radhakrishna Dev and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtKolkata
Decided On
Case NumberA.F.A.D. No. 318 of 1945
Judge
Reported inAIR1952Cal222
ActsCode of Civil Procedure (CPC) , 1908 - Order 1, Rules 3 and 10(2) - Order 2, Rule 6 - Order 6, Rule 17 - Order 41, Rule 23
AppellantThe Corporation of Calcutta
RespondentRadhakrishna Dev and ors.
Appellant AdvocateKrishnalal Banerjee, Adv.
Respondent AdvocateGuruprosad Ghose and ; Gaganendra Krishna Deb, Advs. (For No. 2), ;Apurbadhan Mukherjee, Adv. (For No. 3) and ;Provash Chandra Basu, Adv. (For No. 4)
Cases ReferredParashramsao v. Hiralal
Excerpt:
- .....to the question of limitation the plaintiff, the corporation of calcutta was at liberty to bring separate suits against the different defendants, against this decision an appeal was taken to the district judge and it was heard by the subordinate judge of the third court of alipore mr. khondkar mutberal islam. he allowed the appeal setting aside the order of the trial court and remanding the case back to the lower court for a retrial in the light of certain directions given by him. it will be necessary now to set out certain portions of the judgment of the learned subordinate judge on appeal which are as follows:'for avoiding multiplication of suits and in the interests of justice and as all the parties are before the court, i do not think there is any bar in law to pass such decrees in.....
Judgment:

Sen, J.

1. This appeal is by the plaintiff the Corporation of Calcutta and it arises out of a suit for the recovery of arrears of rates for the period between the fourth quarter of 1930-1931 to the third quarter of 1934.

2. It will be necessary for me to set out certain events which have happened in the conduct of this suit. In the suit as originally framed the plaintiff claimed that the arrears of rates were due in respect of premises No. 31 Elgin. Road. There was a claim for one lump sum against all the defendants and for a declaration of a charge with respect to premises Not 31 Elgin Road. Prior to the trial of the suit the plaintiff was asked to admit certain facts by the defendants and pursuant to this application the plaintiff admitted that premises No. 31, Elgin Road had been sub-divided into 12 different premises prior to the period for which the rates and taxes were claimed and that these 12 different premises were held separately by the different defendants. The learned Munsif who tried the suit held that the suit was bad for misjoinder of parties and causes of action and for multifariousness and dismissed it stating that subject to the question of limitation the plaintiff, the Corporation of Calcutta was at liberty to bring separate suits against the different defendants, Against this decision an appeal was taken to the District Judge and it was heard by the Subordinate Judge of the Third Court of Alipore Mr. Khondkar Mutberal Islam. He allowed the appeal setting aside the order of the trial Court and remanding the case back to the lower Court for a retrial in the light of certain directions given by him. It will be necessary now to set out certain portions of the judgment of the learned Subordinate Judge on appeal which are as follows:

'For avoiding multiplication of suits and in the interests of justice and as all the parties are before the Court, I do not think there is any bar in law to pass such decrees in one suit, 'of course if no other tenable objection arises' during the hearing of the suit. Under the circumstances, I direct that the suit be remanded back to the lower Court for a fresh trial. The plaintiffs would be at liberty to amend the plaint in the light of their peti-tion dated 22-1-43. The lower Court would thereafter give opportunities to the defendants to contest the case, if they so desire and he would dispose of the case afresh in accordance with law 'either by passing a decree for the arrears of tax of one of the sub-divided premises with a charge upon it or by passing separate decrees against separate defendants for separate holdings in their respective occupation with separate charges'.'

When the suit went back on remand the plaitt-tiff made an application before the Munsif few amendment of the plaint. The prayer for amendment was allowed and it was amended in accordance with the. schedule given in the petition for amendment. Put shortly the amendment had the effect of stating the different numbers of the premises which originally formed the single premises No. 31, Elgin Road, and decrees were prayed for against the holders of each of these premises. The learned Munsif after allowing the amendment proceeded to try the suit and he held that the suit should be dismissed on the ground of misjoinder of causes of action. In the course of his judgment the learned Munsif stated that in order to guard against multifariousness he gave, the plaintiff an opportunity at the very outset of the fresh hearing of the suit to make an election as to what particular claim of the different claims the plaintiff would pursue and he says that the learned pleader for the plaintiff stated definitely before him that the Corporation would make no such election but would urge that the plaintiff was entitled to get separate decrees against the separate defendants for separate and distinct claims in respect of the separate and distinct premises in the suit as framed. The learned Munsif says further that as the plaintiff refused to elect he had no option but to dismiss the suit. Against this decision an appeal was taken again to the District Judge and it was heard by Mr. K. C. Das Gupta. He dismissed the appeal holding that the suit as framed was bad for misjoinder of causes of action. Against this decision the present appeal has been filed.

3. Learned Advocate appearing for the plaintiff Corporation urges three points which are as follows: (1) Under Order I, Rule 3 of the Civil P. C. the suit was maintainable and separate decrees should have been passed in the suit as framed; (2) Even if the provisions of Order 1, Rule 3 of the aforesaid Code did not apply, the whole suit should not have been dismissed but action should have been taken under Order 2, Rule 6 and the Court should have ordered separate trials with respect to the separate premises held by the different defendants and should have passed separate decrees against the different defendants in these separate trials; and (3) The Munsif was bound by the order of remand passed by the learned Subordinate Judge which directed him to pass either one decree with respect to one of the sub-divided premises or to pass separate decrees against the separate defendants for the separate holdings. The Munsif had no jurisdiction after such order of remand to dismiss the suit on the ground of misjoinder of causes of action. These are the three main grounds urged by learned Advocate appearing for the appellant. Learned Advocate for the appellant alone submitted that even if these three grounds were not tenable, this Court should permit the plaintiff now to proceed against one of the defendants and to obtain a decree against such defendant.

4. Learned Advocate appearing on behalf of the respondents contends that none of these grounds are tenable and he also submits that no further opportunity should be given to the plaintiff to pursue this suit as it would amount to an undue harassment of the defendants who have been engaged in this litigation for the last seven years.

5. I shall now take up for consideration the different points urged on behalf of the appellant. As stated before the first contention of learned Advocate for the appellant rests on the provisions of Order 1, rule 3 of the Code of Civil Procedure. That rule is in the following terms:

'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 of 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.'

Learned Advocate for the appellant contends that in this suit the claim of the plaintiff arises out of the same transaction and that a common question of law and fact would arise if separate suits were brought against the different defendants. To support this argument he says that all the defendants were liable to pay the Calcutta Corporation the arrears of rates and taxes and by reason of this fact it should be held that the plaintiff's relief is in respect of the same transaction or series of rates and taxes and by reason of that the common question of law and fact in this case 'relates to whether the rates and taxes are payable by the defendants to the Corporation. He argues further that in the suit as originally framed all the defendants were alleged to be liable in respect of one lump sum and that therefore it should be held that in this suit there was a common question of law and fact. I am entirely unable to accept this argument. It seems to me that if this argument be given effect to the Corporation of Calcutta could bring one suit against all the rate-payers of Calcutta and make them co-defendants. This would be ridiculous. The words of the rule are perfectly clear. In order that the rule may be attracted, two elements have to be established; first, that the relief claimed is in respect of the same act or transaction or series, of acts or transactions and secondly, that a common question of law and fact will arise if separate trials were held. Now what is the position in this case? The plaintiff admitted that the defendants were the owners of different premises and that they owed distinct sums to the Corporation for rates and taxes. It cannot be said therefore that the plaintiff's relief is in respect of or arises out of the same act or transaction or the same series of acts or transactions. The relief claimed by the Corporation was for distinct and separate acts and transactions against each of the defendants . This is quite clear from the amendment of the plaint. Each of the defendants was independently 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 of series of acts or transactions. I would emphasise again that the claim of the Corporation against each of the defendants was a distinct claim and the claim against one defendant had no connection whatsoever with the claim against the other. Thus the first requisite mentioned in Order I. Rule 3 of Civil P. C. is absent. Secondly, I fail to see how any common question of law or fact would arise if separate suits were filed against these defendants. The words used are 'common question of law or fact' and not similar question of law or fact. The question of law, must be common to all the defendants; the .question of fact must also be common to all the defendants . Unless this is shown the second requisite of Order I, Rule 3 cannot be established. It is true that if separate suits were filed the plaintiff would have to establish certain facts which would be similar in each case; the plaintiff would have to establish in each case that the defendant was the owner of certain premises and that by reason of being such owner he would have to pay rates and taxes and that such rates and taxes were due. The fact that similar element would have to be proved in the separate suits does not connote that there is . any common question of law or fact involved in all the suits. For instance if A possesses six houses in the town of Calcutta which he lets out to six different persons at different rates of rent, he could not bring one suit for arrears of rent with respect to all the properties against all the defendants. The liability of each defendant is distinct and separate. There will be no common question of law. or fact involved and it could not be said that the relief claimed arises out of the same transaction or series of transactions. The case here is exactly the same. I hold therefore that Order 1, Rule 3 of the Civil P. C. cannot be availed of by the plaintiff.

6. As regards the second point raised namely that the Court should have acted in accordance with the provisions of Order 2, Rule 6, the position of the appellant is equally untenable. Order 2, Rule 6 is in the following terms:

'Where it appears, to the Court that any causes of action joined in one suit cannot be conveniently tried or disposed of together, the Court may order separate trials or make such other order as may be expedient.'

All that the Order says is that on grounds of convenience the Court may order separate trials or make such order as may be expedient in a suit where several causes of action have been joined.

The rule presupposes a valid joinder of causes of action. It has no application to cases where there has been a mis joinder of causes of action. This was the view taken in the case of 'Muthappa Chetty v. Muthu Palarij Chetty', 27 Mad 80 at p. 84. It is true that the case was decided under the old Code but the law with respect to this matter has not been altered by the new Code of 1908. The second ground therefore fails.

7. I shall now consider the third ground taken namely that the Munsif was prevented by the order of remand from dismissing the suit on the ground on which it has been dismissed. This point was considered by the learned District Judge against whose judgment this appeal has been preferred and he has dealt with it very clearly and ably. I have quoted 'in extenso' the judgment passed whereby the case was remanded. It is quite clear from the judgment that there was no unequivocal .direction to the Munsif not to dismiss the suit as framed, nor was there any unequivocal direction that the Munsif was bound either to pass a decree against one of the sub-divided premises or pass separate decrees against, the separate defendants. In the first portion of the judgment quoted by me the words 'if no other tenable objection arises during the hearing of the suit' are used. This shows thatsthe learned Subordinate Judge left the matter, open for the Munsif to decide. It cannot be. said therefore that the order of remand has put any impediment in the.way of the learned Munsif to pass the decree which be has passed.

8. Learned Advocate for the appellant in the course of his reply raised a fresh point namely that this Court had the power to pass a decree against one defendant and strike .out the names of other defendants, and for tfiis purpose reliance was placed on Order 1, Rule 10 (2) of the Civil P. C. In my opinion this contention is not sound. Sub-rule (2) of Rule 10 of Order 1 relates to a case where a defendant has been improperly joined that is to say, where a defendant against whom no relief can be claimed has been made a defendant and it is said that the name of such a person may be struck out. In the present case there has been a misjoinder of. causes of action. It is not a case of a person being added or made a defendant against whom no relief is claimed or against whom no relief can be claimed. This is a ease where the suit is bad because there has been a misjoinder of causes of action and not because, there has been a misjoinder of defendants. I hold therefore that Order 1, Rule 10 can have no appliaation.

9. As regards the prayer that at this stage the plaintiff should be allowed to amend his plaint and pursue the suit against one of the defendants only I am of opinion that it should not be allowed. The plaintiff was given ample opportunity to do this but he flatly refused to do so. The defendants have been harassed for a number of years. Further, the amendment if allowed would deprive the defendants of a valuable' right which they have obtained by virtue of the law of limitation.. If a fresh suit is now instituted against the defendants it would fail on the ground of limitation. The plaintiff should not be allowed to deprive the defendants of this right by allowing-him to amend the plaint. I am not unaware of the fact that in exceptional circumstances amendments are allowed even though such amendment would deprive the defendant of a right which he has obtained by reason of the law of limitation, but this has been done in very exceptional cases. The ordinary rule is that an amendment of pleadings should not be allowed if such an amendment would deprive a party of rights which he has already acquired. I can see no reason why on the facts of this case the ordinary rule should be departed from.

10. I shall now deal briefly with some of the cases relied upon by learned Advocate for the appellant. He first relied upon the case of 'Harendra Nath v. Purna Chandra' 55 Cal 164, and he says that this case supports his view that the suit is maintainable by reason of the provisions of Order 2, R, 3 of the Civil P. C. I find however that the case, if carefully read, does not support this view and has laid down no principle which is contrary to the views which I have expressed above. The case was really decided with reference to Order 1; Rule 2 of the Civil P. C. which says that where it appears to the Court that any joinder of the plaintiffs may embarrass or delay the trial of the suit, the Court may put the plaintiff to their election or order separate trial or make such other order as may be expedient. The rule has no reference to misjoinder of causes of action against several defendants. In that case the plaintiff sued in a dual capacity, firstly as an heir in his own right and secondly as a 'shebait' of a deity. As heir he sued in respect of certain property and as 'shebait' he sued to respect of some other property. It was held that different questions would arise in the investigation of these different claims and that it would be somewhat embarrassing if the suit was tried as framed. Accordingly it was ordered that the plaint should be treated as comprising two suits, one at the instance of the plaintiff as 'shebait' of the deity and another at the instance of the plaintiff in his personal capacity. The next case relied upon by learned Advocate for the appellant is the case of 'C. S. Govindaraja Mudaliar v. Alagappa Thambe-ran', decided by a Full Bench of the Madras High Court reported in 49 Mad 836. This case Jar from supporting the plaintiff's contention goes against him. At page 840 it was clearly laid down that two conditions had to be fulfilled for the application of Order 1, Rule 3 namely that the relief claimed should arise from the same series of acts or transactions and that there must be some common question of law or fact arising in the suit. It was held on the facts of the case that the conditions of Order 1, Rule 3 were fulfilled in that particular case. At page 846 Ramesam J. makes the following observations:

'Now it may be said and there is some force in the contention that a mere unity of title is not enough to save a suit from the mischief of multifariousness. For instance, if several properties belonging to A, the owner of a land have been trespassed upon by different persons at different times, can it be said that A may bring one suit in ejectment against all the trespassers? I find some difficulty in saying that a single suit will lie,'

Then his Lordship goes on to say:

'But where the unity of the title in the plaintiff is coupled with the fact that his predecessor was a limited owner or a person under a disability, such as a minor or the idol of a temple, and the alienations were made by a guardian or the trustee of the temple, such a fact makes the plaintiff's suit one in respect of the same matter.'

In the case under appeal the position is similar to the illustration given by Ramesam J. regarding the case of trespass. The Corporation has the right to collect taxes with respect to several different properties from several different persons. In such a case one suit against all the defaulters would not be maintainable. The next case relied upon by learned Advocate for the appellant is the case of 'Ramendra Nath v. Brajendra Nath', 45 Cal 111. The facts of that case are clearly distinguishable from the facts of the present one. The plaintiff brought a suit against four sets of defendants for recovery of certain documents of title and goods covered thereby and in the alternative tor damages. He alleged that the goods in suit were his property and that the defendant No. 1 obtained the documents of title from him by fraud and made them over to defendant No. 2 who knew of the fraud. The defendant No. 2 sold the goods to defendants 3 and 4 There it was held that the relief of the plainest depended on one common factor namely whether the documents of title were taken, from him by fraud. If that fact was established, the claim of the plaintiff would be established against all the defendants. There is no such common factor in the present case. There is one other case relied upon by learned Advocate for the appellant and that is the case of 'Parashramsao v. Hiralal', ILR (1947) Nag 159. In this case the provisions of Order 2, Rule 6 have been dealt with. I do not see how this can at all support the view advanced by learned Advocate for the appellant. It was expressly stated that the case was not one of misjoinder of causes of action and parties but was a case where there was a proper joinder of causes of action. In such a case the Court is permitted for the sake of convenience to order separate trials if necessary. The present case is one of misjoinder of causes of action and parties and the principles laid down in the 'Nagpur case' can have no application to the case which is under decision.

11. Having regard to the views expressed by me above this appeal must be dismissed with costs in favour of the appearing respondents.


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