Skip to content


Mst. Ramdayee Vs. Dhanraj Kochar and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberCivil Rule No. 747 of 1970
Judge
Reported inAIR1972Cal313,76CWN513
ActsWest Bengal Premises Tenancy Act, 1956 - Section 20; ;Code of Civil Procedure (CPC) , 1908 - Order 1, Rules 3 and 5 - Order 2, Rule 3
AppellantMst. Ramdayee
RespondentDhanraj Kochar and ors.
Appellant AdvocateC. Banerjee and ;Rathindranath Battacharjee, Advs.
Respondent AdvocateSamarendra Kumar Dutta and ;Pramatha Nath Palit, Adv.
Cases ReferredRanjit Kumar Pal Chowdhury v. Murari Mohan Pal Chowdhury
Excerpt:
- .....7, 1967. thereafter the trial court on june 3, 1967 made an order for local inspection of the suit premises. the defendants again obtained a rule against this order. the second rule was discharged on january 9, 1968. and it was after the discharge of these two rules by this court, as late as the 17th september, 1968, the two defendants made the present application objecting to the maintainability of the suit on the ground of jurisdiction and multifariousness. the objections were overruled and the trial judge passed his order on january 21, 1970. immediately thereafter the defendants obtained the present rule.15. on these facts this rule ought to be discharged so far as the plea of multifariousness is concerned. this court in ranjit kumar pal chowdhury v. murari mohan pal chowdhury,.....
Judgment:

Sankar Prasad Mitra, J.

1. This Rule was obtained against an Order of the Third Subordinate Judge at Alipore in Title Suit No. 50 of 1962 made on the 21st January, 1970. By this Order the Subordinate Judge has overruled two objections to the maintainability of the Suit. The first objection was with regard to misjoinder of parties and cause of action. And the second objection was based on Section 20 of the West Bengal Premises Tenancy Act, 1956 challenging the jurisdiction of the Court to try the Suit.

2. Briefly speaking the facts are that the plaintiff is the owner of premises No. 24 Russa Road South, Post Office, Tollygunge in the District of 24-Parganas which subsequently came to be known as premises No. 91. Deshapran Sasmal Road. The building appears to be a fairly large one consisting of 32 rooms and three shop roomsfacing the road. The plaintiff's case is that originally the defendant No. 1 became a tenant in respect of 23 rooms in this property. These 23 rooms have been described in Schedule 'A' to the plaint. In 1959, alleges the plaintiff, the defendant No. 1 and her husband the defendant No. 2 resisted the plaintiff's ingress to and egress from the premises in Suit. In 1960, the defendant No. 1 started depositing the rents payable in respect of the aforesaid 23 rooms with the Rent Controller but in making these deposits the defendant No. 1 described herself to be the tenant of the entire premises. The plaintiff's further allegation is that in January 1961 both the defendants trespassed into the other nine rooms which we have mentioned above and these nine rooms have been described in schedule 'B' to the plaint. The plaintiff has also alleged that the defendant No. 2 has converted all the thirtytwo rooms aforesaid into a Factory without the plaintiff's consent although the original tenancy for 23 rooms was for residential purposes only. In the last paragraph, that is to say, paragraph 16 of the plaint it is alleged: 'That in the facts and circumstances set forth in this plaint the defendant No. 2 is made a party ..... (to) this Suit and more particularly for the act of trespass committed by him also in respect of properties mentioned in Schedule 'B' ......... (to) this plaint, and also for the fact that he is the husband of (the) defendant No. 1 and whatever has been done by (the) defendant No. 1 has been done in conspiracy with (the) defendant No. 2 in respect of the disputed premises.' The plaintiff's prayers, inter alia, are (a) decree for recovery of Khas possession in respect of property described in Schedule 'A' by evicting the defendant No. 1 therefrom: (b) decree for damages in respect of Schedule 'A' properties from 1-4-1962 till Khas possession is obtained; (c) declaration of title and recovery of possession in respect of property described in Schedule 'B' after evicting the defendants therefrom and (d) a preliminary decree for mesne profits in respect of Schedule 'B' properties.

3. The first contention of the petitioner before us is that the Subordinate Judge's Court has no jurisdiction to try the Suit for recovery of possession of 'A' Schedule properties. Such a Suit, according to counsel for the petitioner, should have been instituted in the Munsiff's Court.

4. This contention is founded on the provisions of Section 20 of the West Bengal Premises Tenancy Act, 1956. The provisions are as follows : 'Notwithstanding anything contained inother law, a Suit or proceeding by a landlord against a tenant in which recovery of possession of any premises to which this Act applies is claimed shall lie to the Courts, as set out in the Schedule, and no other Court shall be competent to entertain or try such Suit or proceeding.'

5. There is no dispute that where a landlord institutes a Suit or proceeding against a tenant merely claiming recovery of possession of any premises to which the West Bengal Premises Tenancy Act, 1956 applies the Suit or proceeding can be instituted only in the Court specified in the Schedule to the Act depending on valuation. But we do not find in these provisions any bar express or implied to joinder of parties and causes of action provided that such joinder is permissible in law. To us it seems that Section 20 applies to a Suit or proceeding by a landlord against a tenant for recovery of possession simpliciter. The section does not stand in the way of institution of a Suit or proceeding other than simply a Suit or proceeding by a landlord against a tenant for possession in a Court competent to try such Suit or proceeding. And neither the non-ob-stante Clause nor the Clause 'no other Court shall be competent etc.' can operate as a bar to such a Suit or proceeding. In the instant case we have to consider the provisions of Order 1, Rule 3. Order 1, Rule 5 and Order 2, Rule 3 of the Code of Civil Procedure. These provisions are as follows:

Order 1, Rule 3 -- 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 of 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.

Order 1, Rule 5 -- It shall not be necessary that every defendant shall be interested as to all the relief claimed in any Suit against him.

Order 2, Rule 3 (1) -- Save as otherwise provided, the plaintiff may unite in the same Suit, several causes of action against the same defendant, or the same defendants jointly, and any plaintiffs having causes of action in which they are jointly interested against the same defendant or the same defendants jointly may unite such causes of action in the same Suit.

(2) Where causes of action are united, the jurisdiction of the Court as regards the Suit shall depend on the amount or value of the aggregate subject-matters at the date of instituting the Suit.

6. These are the relevant provisions for joinder of parties and causes of action. In our opinion these provisions have neither been abrogated nor been repealed by Section 20 of the West Bengal Tenancy Act, 1956. Section 20 does not lay down that the Cause of action for a Suit for possession by a landlord against a tenant cannot be joined in a proper Suit with another Cause of action. The position, therefore, is that the Subordinate Judge had jurisdiction to try the Suit as framed if he was satisfied that there was a proper joinder of parties and causes of action.

7. We now proceed to discuss whether under the aforesaid provisions of the Code of Civil Procedure the plaintiff has properly framed his Suit. The plaintiff admittedly is the owner of the premises. The series of acts alleged in the plaint in respect of the premises are (a) the defendant No. 1 became a tenant of Schedule 'A' properties (b) in 1959 the defendants Nos. 1 and 2 prevented the plaintiff from entering into the premises (c) in 1960 the defendant No. 1 started depositing rents for the entire property with the Rent Controller (d) in January 1961 the defendants Nos. 1 and 2 trespassed into the 'B' Schedule properties and (e) the defendant No. 1 in conspiracy with the defendant No. 2 has converted a residential property into a factory without the plaintiff's consent. Assuming that the plaintiff had filed two Suits one against the defendant No. 1 only for recovery of possession of 'A' Schedule properties in the Court of the Munsiff under the provision of the West Bengal Premises Tenancy Act, 1956 and the other in the Court of the Subordinate Judge for recovery of possession of 'B' Schedule properties on the ground that the defendants Nos. 1 and 2 had trespassed into these properties, the common questions of facts that the plaintiff had to prove in both the Suits were : (1) that the defendant No. 1 was a tenant of 23 rooms only and had trespassed into 9 rooms along with the defendant No. 2 (2) the deposits which the defendant No. 1 made with the Rent Controller were not for the entire premises but for 23 rooms only.

8. If the plaintiff had succeeded in establishing these two common facts a further common question of law would have arisen as to the validity of the deposits in view of the provisions of Section 22 (2) of the West Bengal Premises Tenancy Act, 1956.

9. In these circumstances, we cannot but hold that the plaintiff was justified in order to avoid, multiplicityof Suits and proceedings and also the possibility of conflicting decisions, in bringing one consolidated Suit covering both the 'A' Schedule and 'B' Schedule properties. To us it seems that this is the precise reason why the aforesaid provisions of the Code of Civil Procedure have been introduced.

10. We may now refer to a few decided cases. The earliest case on the subject to which our attention has been drawn is the case of Ramendra Nath Ray v. Brojendra Nath Dass, 21 Cal WN 794 = (AIR 1918 Cal 858). In this case the plaintiff asserted that he was the owner of certain bales of jute and the Defendant B. N. D. obtained possession of the same and of the documents of title relating thereto (namely ten bills of lading and railway receipts) by means of fraud. B. N. D. transferred nine of the documents of title to C. & Co. and C. & Co. transferred them to L. J. M. & B. Bros. One railway receipt was pledged by B. N. D. with B. N. B. Part of the goods were taken delivery of by L. J. M. and part stopped by the plaintiff in transit. Plaintiff brought an action praying in the alternative for the recovery of goods and documents of title relating thereto or the value of the goods making B. N. D. C' Co. L. J. M. B. Bros. and B. N. B. party defendants. A Division Bench of this Court has held that the defendants were properly joined in the Suit under the provisions of Order 1, Rule 1 and Order 1, Rule 3 of the Code of Civil Procedure, 1908. Mr. Justice Woodroffe at page 802 observes :

'..... The next question then is whether the joinder in the present case is justified by that rule (that is Rule 3 of Order 1). It is contended that it is not, it being argued that there are different sets of transaction and no common question of law or fact. The foundation of the case, on which the rest of it depends, is the alleged fraud of B. N. Das. If such fraud is proved the question is did the defendants who all claim under B. N. Das obtain any title If the plaintiff fails to prove fraud on the part of B. N. Das, the case fails against all the defendants. If he proves fraud, it may be that the defendants may have a different answer by way of defence; but that does not make the case any the less one of a common question of law and fact. The same act or transaction which concerns all parties is the alleged fraud of B. N. Das, and this involves a common question of law or fact. All defendants have derived title from a person who is alleged to have obtained the goods by means of fraud. By reason of this the possession of all is alleged to be wrongful. Whether a commonquestion arises may be tested by seeing what the evidence will be ..... .

It is true so far as the plaintiff's cause of action, as based on the fraud of B. N. Das, is concerned though there may be some facts which are particular to particular parties being offered in the proof of the Plaintiff's case (i. e., present possession of the goods as a result of such fraud) or by the defendants as part of their defence. The rule does not say that all questions must be common. It is sufficient that there is a common question. In my opinion, then, the plaint is within the provisions of Order 1, Rule 3 .....'

11. We have already discussed the series of acts alleged in the plaint herein relating to the premises in Suit. We have also said that one common question of fact arises with respect to both the defendants and that common question is whether the defendant No. 1 is a tenant of the entire premises or only a portion thereof. Mr. Banerjee, learned counsel for the petitioner has urged that the defendant No. 2 is not at all interested in the eviction of the defendant No. 1 from. 23 rooms in the premises. In other words so far as these 23 rooms are concerned no relief can be or has been claimed against the defendant No. 2. But that in our opinion does not make the Suit bad for misjoinder of parties and causes of action. Rule 5 of Order 1 of the Code specifically provides that it shall not be necessary that every defendant shall be interested in all the reliefs claimed in any Suit against him. In Ramendra Nath Ray's case also all the defendants were not concerned with all the reliefs claimed in the Suit. This contention of Mr. Banerjee, therefore, cannot be upheld.

12. A number of decisions on the relevant provisions of Orders 1 and 2 of the Code were placed before us but we need not refer to all of them. The next case we intend to rely on is the case of Kamala Prosad Gupta v. Chaman Lal Agarwalla, (1962) 66 Cal WN 391. This is also a judgment of a Division Bench. The Rule arises out of a suit for recovery of possession of the disputed property from the defendants after a declaration of the plaintiff's tenancy right therein under the defendants Nos. 3 and 4, a declaration of determination of the defendant No. 1's tenancy under the plaintiff and a further declaration that defendant No. 2 is a trespasser. An objection was taken to the maintainability of the suit on the ground that it was bad for multifariousness. In the plaint, there was a specific allegation of conspiracy amongst all the defendants for keeping the plaintiff out of possession ofthe disputed property, but the learned trial Judge held that this mere allegation of conspiracy would not be sufficient for a lawful ioinder of the several causes of action against the several defendants and that, accordingly, it would be no answer to the defence objection of multifariousness. This Court made the Rule absolute and set aside the order of the Trial Judge. This Court was of the view that the allegation of conspiracy in the plaint, as it stood, would be sufficient for uniting or joining the several causes of action against several defendants under Order 1, Rule 3 of the Code. This Court has pointed out that the provision in Rule 3 of Order 1 has been liberally interpreted by courts and its scope has never been attempted to be narrowed down or restricted. It is stated in the judgment that on the plaintiff's case, his claims are inter-connected, the several transactions conforming the basis of his claims being so inter-linked that they may be regarded as constituting one series of transactions within the meaning of Order 1, Rule 3 out of which the plaintiff's right to relief arises. This Court has said that it is true that, in the plaint, there are also other claims, namely, of arrears of rent and mesne profits but those are only incidental or consequential reliefs flowing from or arising out of the main relief for recovery of possession. This Court has held that the Civil Procedure Code expressly permits joinder of defendants and causes of action not only where the right to relief against the several defendants exists jointly but also severally or in the alternative and does not require that all the defendants should be interested in all the reliefs.

13. To our mind the main principles enunciated in this judgment apply to the facts of this case. It is true that the plaintiff has claimed recovery of possession of 23 rooms against the defendant No. 1 and recovery of possession of 9 rooms against the defendants Nos. 1 and 2. But the series of acts which the plaintiff has alleged including deposit of rent by the defendant No. 1 with the Rent Controller for the whole premises and the conversion of a residential building into a Factory by both the defendants are so interlinked that we cannot throw out the Suit on the ground of misjoinder of parties and causes of action.

14. There is one other feature of this case we wish to deal with. Learned Advocate appearing for the plaintiff placed before us from the records a few facts concerning the conduct of the two defendants in this Suit. The plaintiff instituted the Suit on the 25th May, 1962. On July 4, 1963, thetrial Court framed the issues. On July 8, 1963 the trial Court made an Order for analogous hearing of this Suit and another Suit which the plaintiff had instituted in 1959, inter alia, for an Injunction restraining the defendants from preventing the plaintiff's ingress to and egress from the premises. The defendants obtained a Rule against this order. The Rule was discharged on April 7, 1967. Thereafter the trial Court on June 3, 1967 made an Order for local inspection of the Suit premises. The defendants again obtained a Rule against this Order. The second Rule was discharged on January 9, 1968. And it was after the discharge of these two Rules by this Court, as late as the 17th September, 1968, the two defendants made the present application objecting to the maintainability of the Suit on the ground of jurisdiction and multifariousness. The objections were overruled and the trial Judge passed his Order on January 21, 1970. Immediately thereafter the defendants obtained the present Rule.

15. On these facts this Rule ought to be discharged so far as the plea of multifariousness is concerned. This Court in Ranjit Kumar Pal Chowdhury v. Murari Mohan Pal Chowdhury, : AIR1958Cal710 observed: 'The rule of multifariousness is a rule of convenience and it is primarily in the discretion of the Court to decide whether the plaintiff should be allowed to proceed with different causes of action in the same suit upon a consideration of all the facts and circumstances of the case. The omission of the defendants to raise the plea for a period of more than twelve years from the date of the framing of the issues, is fatal to their claim.' In our case the plea of multifariousness was raised more than five years after the framing of issues and after various other proceedings have taken place both in the trial Court and in this Court. From this point of view also we would not be justified in interfering with the trial Court's discretion. exercised in favour of the plaintiff.

16. In the result the Rule is discharged. There will be no order as to costs. The learned Advocate for the petitioner states that the Miscellaneous Appeal which the petitioner had filed against the said impugned order of the trial Judge has already been dismissed. Let the records be sent back to the trial Court expeditiously.

Janah, J.

17. I agree.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //