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Harendra Nath Singha Ray Vs. Purna Chandra Goswami and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1928Cal199
AppellantHarendra Nath Singha Ray
RespondentPurna Chandra Goswami and ors.
Cases ReferredPayne v. British Time Recorder Co. Ltd.
Excerpt:
- .....in one action, as plaintiffs in whom any right to relief in respect of or arising out of the same transaction or series of transactions is alleged to exist, whether jointly, severally or in the alternative, where if such persons brought separats actions any common question of law or fact would arise.8. rule 4, order 16, stands as before in these words:all persons may be joined as defendants against whom the right to any relief is alleged to exist whether jointly, severally or in the alternative.9. two matters must now, upon the authorities, be regarded as well settled. first. order 16 of the english rules, though headed 'parties' only, deals not only with joinder of parties but also joinder of causes of action (see the cases referred to in ramendra nath roy v. brajendra nath dass [1917].....
Judgment:

Mukerji, J.

1. The plaint in this suit relates to five items of properties, which for the sake of convenience may be called A, B, C, D, and E. The plaintiff claims to be the reversionary heir of one Rashbehari Goswami. He also claims to be the shebait of the deity Nandadulal Thakur, installed by the ancestors of the said Rashbehari Goswami, on the ground that according to the rule and practice prevailing in the family, from the time of his ancestors, the shebaitship has all along vested in the heirs according to the law of inheritance. The plaint states that Rashbehari Goswami left a widow Tarini Debi, and one Susil Kumar alias Sachindra, whose widow is defendant 1, had set up a claim that he had been adopted by her as her son. The plaintiff seeks to have his title declared as owner in respect of properties B, C, D and E, and the title of the deity Nandadulal Thakur to property A and asks for recovery of possession of properties B, C, D and E as such owner and of property A as such shebait. According to the plaint properties A and B were in the possession of defendant 2, who claims to have obtained the same from Tarini Debi and Sachindra, by a conveyance and a lease respectively; property C is in the possession of defendant 3; property D is in the possession of defendant 4 and property B in the possession of defendant 5. It is alleged in the plaint that the three last-mentioned defendants were in collusion with each other and with defendant 1.

2. The Subordinate Judge held that the suit, in the form in which it was laid, was not maintainable. He gave the plaintiff an opportunity to elect as to how he would proceed with the suit and against which of the defendants; and on the plaintiff not having availed, of the opportunity, he dismissed the suit.

3. The District Judge held on appeal that the suit was maintainable and remanded it for trial on the merits. Defendant 2 has then preferred this appeal.

4. The question of maintainability of the suit was dealt with by the Courts below from the point of view of Order 1, Rule 1, Order 1, Rule 3 and Order 2. Rule 3, Civil P.C. The Subordinate Judge held that all the three rules have been contravened, while the District Judge has held that none of them has been infringed.

5. As regards properties B, C, D and E, it is clear that the plaintiff seeks to sue in his individual capacity and recover possession of the properties on the death of the widow from defendants 2 to 5 who, under a transfer from the widow and the son said to have been adopted by her or in collusion with the latter's widow, are m possession thereof. Property A belongs to the deity Nandadulal Thakur and it is in the possession of defendant 2, who claims to hold it as transferee from the widow and the said adopted son.

6. Order 1, Rule 1 and Order 1, Rule 3, Civil P.C., are in practically the same terms. They correspond to a part of Order 16, Rule 1 and to Order 16, Rule 4, respectively, of the English rules. Before 1896, this part of Order 16, Rule 1, ran in these words:

All persons may be joined as plaintiffs in whom the right to any relisf claimed is alleged to exist, whether jointly, severally, or in the alternative.

7. In 1896 it was amended and as amended it runs thus:

All persons may be joined in one action, as plaintiffs in whom any right to relief in respect of or arising out of the same transaction or series of transactions is alleged to exist, whether jointly, severally or in the alternative, where if such persons brought separats actions any common question of law or fact would arise.

8. Rule 4, Order 16, stands as before in these words:

All persons may be joined as defendants against whom the right to any relief is alleged to exist whether jointly, severally or in the alternative.

9. Two matters must now, upon the authorities, be regarded as well settled. First. Order 16 of the English Rules, though headed 'parties' only, deals not only with joinder of parties but also joinder of causes of action (see the cases referred to in Ramendra Nath Roy v. Brajendra Nath Dass [1917] 45 Cal. 111, in the judgment of Woodroffe, J., at p. 123 and of Mookerjee, J., at p. 132) : and second, though Rule 4 was not amended, the alteration of Rule 1 alters the effect of Rule 4 and whatever construction is placed on Rule 1 ought now to be applied also to Rule 4. Oesterreichisahe Export A.G. v. British Indemnity Insurance Co. Ltd. [1914] 2 K.B. 747, In Re Beck [1918] 87 L.J. Ch. 335 and that a plaintiff is entitled to join as co-defendants persons against whom he has different causes of action in cases where common questions of law and fact are involved : Payne v. British Time Recorder Co. Ltd. [1921] 2 K.B. 1. It follows, therefore, that under Rule 3, Order 1, Civil P.C., which, unlike the English Rule 4, Order 16 has been amended and brought on the lines of Rule 1, Order 1 Civil P.C., there is greater reason for interpreting it in that way. As regards the joinder of defendants, if the plaintiff's right to relief is in respect of, or arises out of, the same act, transaction or series of acts or transactions, whether it exists jointly, severally or in the alternative all the defendants could be joined in one action, provided that if separate suits were brought against such persons any common question of law or fact would arise. So also as regards the joinder of plaintiffs.

10. It has been repeatedly pointed out by the House of Lords that although the decisions since the amendment of Order 16, Rule 1, the effect of which was to widen its language, have not been always consistent nor wholly satisfactory, still the more recent decisions have tended in the right direction, namely, to show an increasing tendency to give effect to the obvious purpose of the rule. In Drincqbier v. Wood [1899] 1 Ch. 393, Byrne, J., pointed out that 'transaction' was not confined to something taking place between two parties. In Stroud v. Latuson [1898] 2 Q.B. 44. Smith, L.J., said:

According to the terms of the rule the plaintiff in this case cannot join the two causes of action which he is putting forward in different capacities, unless he can show that they both arise out of the same transaction. It is not enough for him to show that, if separate actions were brought, 'a common question of law or fact would arise' for those words do not apply, unless the right to relief in each case arises out of the same transaction.

11. Chitty, L.J., in the same case observed:

They are, therefore, as I have said, in reality two separate plaintiffs suing in respect of two separate and distinct causes of action in this case. The question then arises whether both the causes of action arise out of the same transaction within the meaning of Order 16, Rule 1.... It is necessary that both these conditions should be fulfilled, that is to say, that the right to relief alleged to exist in each plaintiff 'Should be in respect of or arise out of the same transaction, and also that there should be a common question of fact or law, in order that the case may be within the rule.... I do not deal with the words 'series of transactions' because' they were not relied upon by the plaintiff's counsel.

12. While Vaughan Williams, L.J., said:

I do not, however, understand that by the new rule it was intended to prevent the joinder of different causes of action under it. On the contrary I understand its object to be to facilitate such joinder, and to allow plaintiffs to join different causes of action where, under the old rules as interpreted in Smurthwaite v. Hannay [1894] A.C. 494 by the House of Lords they could not do so.... I do not think that the rule means that the whole of a transaction must be involved in each of the causes of action joined. I think that, if there was a transaction or series of transactions in respect of which one plaintiff was interested up to a certain point, and the other plaintiffs were interested, not only up to that point, but in respect of the entire transaction or series of transactions from beginning to end, under this rule they might join their separate causes of action in one action, because there would be one transaction or series of transactions in respect of which the various plaintiffs all claimed a right to relief.

13. That the rule deals with joinder of causes of action as well as joinder of parties is now well settled : see Bullock v. London General Omnibus Co. [1907] 1 K.B. 264; Compania Sansinena de Carnes Gongcladas v. Houlder Brothers & Co. Ltd. [1910] 2 K.B. 354; Times Cold Storage Co. v. Lowther & Blankley [1911] 2 K.B. 100; Oesterreichische Export A.G. v. British Indemnity Insurance Co., Ltd. [1914] 2 K.B. 747. In Markt & Co. v. Knight Steamship Co. Ltd. [1910] 2 K.B. 1012, Fletcher Moulton, L.J., while pointing out the distinction between this rule and that which relates to a representative suit, said, with regard to this rule:

This makes it clear that (subject to the control of he Court) persons can unite as plaintiffs though seeking individual relief in cases where the investigation would to a great extent be identical in each individual case. The policy of the rule is to avoid needless expense where it can be done without injustice to anyone. And it carries out its object.

14. The question of joinder of plaintiffs or defendants and the meaning of Rule 16, Rules 1 and 4, have been considered lately by the Court of appeal (Lord Sterndale, M. E., Warrington, L.J., and Scrutton, L.J.) in Payne v. British Time Recorder Co. Ltd. [1921] 2 K.B. 1 and it has been said:

Broadly speaking, where claims by or against different parties involve or may involve a common question of law or fact bearing sufficient importance in proportion to the rest of the action to render it desirable that the whole of the matters should be disposed of at the same time the Court will allow the joinder of plaintiffs or defendants, subject to its discretion as to how the action should be tried.

15. This is a good working rule for practical purposes and, applying it to the present case, it seems to us clear that the action as framed is justified by Order 1, Rules 1 and 3, Civil P.C. Looking at the matter, however, from the point of view of Order 1, Rule 2, we are of opinion that the trial of the suit as laid is likely to be somewhat embarrassing, especially as some of the questions that will arise so far as property A is concerned, will have no bearing upon the claim as regards properties B, C, D and E and also because the question of costs, in so far as the deity is concerned will arise, which, if possible, must be kept separate from these which the plaintiff will incur or be entitled to recover in his personal capacity.

16. We, accordingly, set aside the orders passed by both the Courts below and direct that the plaint be treated as comprising two suits: one at the instance of the plaintiff as shebait of the deity Nandadulal Thakur in respect of property A and the other at the instance of the plaintiff in his personal capacity in respect of the properties B, C, D, and E, and the two suits be separately tried.

17. We make no order as to costs in this appeal.

Roy, J.

18. I agree.


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