P.N. Mookerjee J.
1. The principal point that arises for consideration in this appeal is, whether the suit in the present instance is bad on the ground of multifariousness, that is, misjoinder of parties and causes of action and is liable to be dismissed on that ground. The learned Subordinate Judge framed several issues in this case but the only effective decision that he has given is on the issue of multifariousness and he has dismissed the suit on that ground expressly stating that it was unnecessary for him in the circumstances of this case to 'discuss' the other issues. In our opinion, the learned Subordinate Judge is right in his decision that the suit is bad on account of multifariousness and, accordingly, this appeal is liable to be dismissed subject to the observations which will be made below. The reasons for pur view will be found in the discussions which will presently follow.
2. The material facts leading up to the present appeal are as follows: The plaintiffs-appellants were the proprietors of Separate Accounts Nos. 314/1 and 314/2/1 of the parent Touzi No. 314 of the Collectorate of 24 Parganas at the relevant time. Defendants Nos. 1 to 4 were the proprietors of Separate-Accounts Nos. 314/5 and 314/8, Defendant No. 5 was the proprietor of Separate Account No. 314/7, Defendant No. 6 was the proprietor of Separate Account No. 314/9, Defendants Nos. 7 to 9 were the proprietors of Separate Account No. 314/10, defendant No. 10 was the proprietor of Separate Account No. 314/11, Defendants Nos. 11 and 12 were the proprietors of Separate Account No. 314/12, Defendants Nos. 13 to 16 were the proprietors of Separate Account No. 314/14, Defendants Nos. 17 and 18 were the proprietors of Separate Account No. 314/15 and Defendant No. 19 was the proprietor of the residuary Separate Account of the parent Touzi (No. 314) which was numbered as 314/R. S. According to the plaintiffs, they also acquired subsequently Separate Accounts Nos. 314/7, 314/9 and 314/15, but that is not material for our present purpose as this acquisition took place after the relevant point of time involved in the present case.
3. There was default in the payment of the March kist of revenue for the year 1932 of the Separate Accounts mentioned above as belonging to the Defendants. On the 2nd June 1932,.there was a gazette notification for sale of those Separate Accounts for default in the payment of revenue. On the 27th June 1932, sales/were held but as there were no bids the sales were stopped and on the very same day the plaintiffs applied for permission to make deposits of the amounts in default in respect of the said Separate Accounts and the Collector granted them permission to make the deposits under Section 9, Revenue Sales Act. The total amount thus deposited by the plaintiffs was Rs. 4691/14/3 and the present suit was brought on the 26th June 1935 for recovery of the said sum of Rs. 4691/14/3 pies with costs and interest, the total claim amounting to Rs. 5551/7/3 pies. In the suit, all the defaulting proprietors of the Separate Accounts mentioned above were made parties as principal defendants and the other co-proprietors of the parent Touzi No. 314 were also made parties as pro forma defendants and relief in the shape of reimbursement and contribution was claimed in the suit against the principal defendants. The suit was contested by a number of defendants, amongst the defaulting proprietors and one of the common defences which was raised was that the suit was bad on account of multifariousness, that is, mis-joinder of parties and causes of action. There were other defences also to the effect that the material allegations made by the plaintiffs were not true and, in any event, in the circumstances of this case, the plaintiffs were not entitled to re-imbursement or contribution in respect of the payments alleged to have been made by them.
4. The learned Subordinate Judge came to the conclusion that the suit was bad for multifariousness and, although he made certain observations with regard to the other issues arising on the facts of this particular case, he did not, as already stated, 'discuss'
-- and, therefore, did not decide -- any of the said other issues in the case. Having regard to his finding that the suit was bad for multifariousness, the suit was dismissed by the learned Subordinate Judge and against that decision the present appeal has been taken by the plaintiffs.
5. On behalf of the appellants, Mr. Banerji contended that the learned Subordinate Judge was wrong in holding in the circumstances of this case that the suit was bad for multifariousness and he submitted that, under the provisions-of Order 1, Rule 3 and Order 2, Rule 3, Civil P. C., the suit was a good suit and was not hit by any defect of multifariousness. Mr. Banerji contended that as there was one parent Touzi and as it was upon the fact of payment made by the plaintiffs that the cause of action for the present suit, -- though different against different defendants, -- was based, the ingredients necessary for attracting Order 1, Rule 3 and/or Order 2, Rule 3, Civil P. C., namely, that there must be the same act or transaction or the same series of acts or transactions and that there must be some common question of law or fact involved in the case, were both satisfied and the present suit was protected by the said provisions against any challenge on the ground of defect of multifariousness. Mr. Banerji in this connection drew our attention to three decisions of this Court reported in --'Ramendra Nath v. Brojendra Nath', 45 Cal 111;-- 'Harendra Nath v. Purna Chandra', 55 Cal 164, and -- 'Shew Narayan Singh v. Brahmanand Singh', : AIR1950Cal479 , and he submitted on the basis of those decisions that there was no defect of multifariousness in the present suit. On examining the said decisions, however, we find that in all these cases there was a common or connecting link--or, as it has been put in the case in -- 'Anukul Chandra v. Province of Bengal', 51 Cal WN 295, 'Some nexus' -- and on that ground the suits in those cases were held to be not bad on the ground of multifariousness. In the case of --'Ramendra Nath v. Brojenra Nath', 45 Cal 111, the common link was the allegation of fraud against B. N. Dass. In the case of --'Harendra Nath v. Purna Chandra', 55 Cal 164, also, there was the death of the widow Tarini -- out of which the plaintiff's right to relief was alleged to have arisen -- which supplied the 'nexus'. In the remaining case, namely, that reported in -- 'Shew Narayan Singh v. Brahmananda Singh', : AIR1950Cal479 , Sen J. who delivered the main judgment and discussed the law on the question of multifariousness in great detail observed at p. 483 of the Report as follows: 'It is true that the claim against defendant No. 1 is based on the breach of a contractual right while the claim against the other defendants is based on the breach of a common law right, but the right to relief is available in respect of both sets of defendants 'because the contractual right has been infringed. If it had not been infringed, no question of tort would arise'. In such a case, one suit against all is, in my opinion, permissible.'
The learned Judge also proceeded to observe at page 484 of the Report as follows: 'The plaintiff has one grievance viz., that the contract has been broken and he alleges that all the defendants have joined or conspired together in causing this breach.' It is clear, therefore, that the learned Judge relied upon the breach of contract and to some extent also upon the allegation of conspiracy -- as the common link binding all the defendants -- in other words, as supplying the 'nexus' so as to satisfy the tests laid down under Order 1, Rule 3 and Order 2, Rule 3, Civil P. Order
6. The only other decision to which any reference need be made is a decision of this Court in the case of -- 'Nripendra Nath v. Sm. Nistarini Dassi', Civil Revn. Case No. 1134 of 1950, D/- 16-5-1951 (Cal), where also the law as laid down in Order 1, Rule 3 and Order 2, Rule 3, Civil P. C. was discussed in some detail but in that decision too there was one common link found, namely, the 'will', in that case and on that ground this Court held that there was the requisite 'nexus' for the purpose of attracting Order 1, Rule .3 and Order 2, Rule 3, Civil P. C.
7. It is clear, therefore, that for the application of the above provisions of the Code there must be some 'common question of law or fact' and also 'the same act or transaction or the same series of acts or transactions in respect of which or out of which the alleged right to relief arises. It is clear also on the authorities that some common link or 'nexus' must be found in order that the requisite as to there being the same act or transaction or the same series of acts or transactions may be satisfied. That this is so appears plain from what has gone before and the relevant discussion in --'Anukul Chandra v. Province of Bengal', 51 Cal WN 295, above cited, where the defence plea of multifariousness was upheld.
8. In the present case, the defaults were separate and made by separate individuals in respect of different Separate Accounts. The payments which were made by the plaintiffs were payments not under Section 14, - because that stage had not been reached on the findings of the learned Subordinate Judge, - but under Section 9, Revenue Sales Act, so that the payments were made by the plaintiffs against the several individual defaults and in respect of the different Separate Accounts separately in other words, the payments made were distinct, separate and unconnected with each other. The mere fact that all the payments were made on the same day or that all these Separate Accounts were really separate accounts of the same parent Touzi No. 314 would not, in our opinion, materially alter the position and would not be sufficient to supply the requisite 'nexus' for holding that the acts or transactions evidenced by these payments formed one or the same series of acts or transactions or that these payments were parts of one or the same act or transaction. In such circumstances, it is not possible to give effect to Mr. Banerji's contention and, in our view, the learned Subordinate Judge was right in deciding the issue of multifariousness against the plaintiffs.
9. There is, however, one matter which requires to be noticed at this stage. The learned Subordinate Judge gave the plaintiffs an opportunity to make an election to proceed against some of the defendants so as to avoid the plea of misjoinder of parties and causes of action. This the plaintiffs refused to do but before us Mr. Banerji made a prayer that if the suit was liable to be dismissed on the ground of multifariousness, his clients should be given, in the particular circumstances of this case, an opportunity to make an election to proceed against the holder of the residuary share (Defendant No. 19) in this suit so far as their claim against her was concerned. Having given the matter our best consideration, we are inclined, in the circumstances of this case, to accept Mr. Banerji's prayer,
10. We, accordingly, hold that the present suit so far as it is constituted against all the defendants on record is bad for multifarious-ness and is liable to be dismissed on that ground but Mr. Banerjee having made the prayer for election, as stated above, we grant the prayer and we dismiss the suit against all defendants except defendant No. 19 and we give leave to the plaintiffs to make suitable amendments in the court below and proceed with his claim in this suit against defendant No. 19. Against the other defendants, the present suit must be dismissed on the ground of multifariousness, leaving it open to Mr. Banerji's clients to proceed against them, if they are so advised, in separate appropriate proceedings in accordance with law.
11. Subject to the above observations, this appeal is dismissed except with regard to defendant No. 19 against whom alone the suit will now proceed in the trial court as above indicated. So far as this latter Defendant (No. 19) is concerned, the case is remanded to the learned Subordinate Judge for a proper hearing of the suit according to law and in accordance with the directions given above. In the circumstances of this case, the contesting respondents will be entitled to their costs of this appeal from the appellants. There will, however, be one set of hearing fee to be divided equally between the said respondents.
12. I agree.