Beverley and Jenkins, JJ.
1. The facts of this case, so far as they are necessary for the decision of the present appeal, may be briefly stated as follows:
Plaintiffs 2 and 3 are the reversioners to the estate of one Kunj Behari Lal, whose widow Chet Koer died on 22nd June 1878. Plaintiff No. 1 claims a fourth of the property in suit under an arrangement with the predecessor of plaintiffs Nos. 2 and 3. In this suit they join in seeking to set aside an alienation by the widow of a moiety of Kunj Behari Lal's estate. The suit was instituted on 23rd February 1891 (the 22nd February being a Sunday). The period within which such a suit must be brought being admittedly twelve years from the death of the widow, the suit is clearly barred, unless the plaintiffs are allowed a deduction of the time during which they were unsuccessfully prosecuting another suit under the provisions of Section 14 of the Limitation Act.
2. It appears that on 25th April 1890 the plaintiff No. 1 alone instituted a suit to recover, not only the moiety of Kunj Behari Lal's estate now in suit, but also the other moiety which had been alienated by the widow to other parties. On the 19th June 1890 . the plaintiffs Nos. 2 and 3 were added as co-plaintiff's in that suit. On 19th February 1891 the suit was dismissed for misjoinder of causes of action and parties. The period from 22nd June 1878 when the widow died to 23rd February 1891 when this suit was instituted is (making allowance for the 22nd February being a Sunday) exactly twelve years and seven months, and the period from 19th June 1890 when plaintiffs Nos. 2 and 3 were made parties to the former suit to 19th February 1891 when that suit was dismissed is exactly seven months So that if the latter period can be deducted under Section 14 of the Act, the suit is just within time; and the question we have to decide is whether under the provisions of that section this deduction can be allowed.
3. The District Judge is not clear upon the point, and he has really dismissed the suit on another ground. He considers that the plaintiff was a mere champertor suing on an illegal contract, and that plaintiffs Nos. 2 and 3 cannot be considered as having been prosecuting the suit with due diligence during such time as he was suing alone. But, as we have pointed out, it is unnecessary to take that time into account. The present suit is in time if the period during which the previous suit was pending after plaintiffs Nos. 2 and 3 were made parties to it can be excluded. This was virtually conceded at the argument, the learned Counsel for the respondent not attempting to support the Judge's finding on this point.
4. The first clause of Section 14 of the Limitation Act runs as follows:
In computing the period of limitation prescribed for any suit, the time during which the plaintiff has been prosecuting with due diligence another civil proceeding whether in a Court of First Instance or in a Court of appeal against the defendant shall be excluded, where the proceeding is founded upon the same cause of action, and is prosecuted in good faith in a Court which from defect of jurisdiction or other cause of a like nature is unable to entertain it.
5. The question we have to determine is whether, when the former proceeding has been thrown out by the Court, because two different causes of action against different sets of defendants were improperly joined in the same suit, the Court may be said to have been unable to entertain it from defect of jurisdiction or other cause of a like nature.
6. A large number of cases have been cited to us in the course of the argument; but none of them is precisely on all fours with the present. The respondents' Counsel mainly relied on the opinions of the majority of the Judges who decided the Full Bench case of Chunder Madhub Chuckerbutty v. Bissessuree Debia 6 W.R. 184, and of those who decided the case of Luchmun Per shad v. Nimhoo Pershad 17 W.R. 266. The Advocate-General, on the other hand, relied on the case of Deo Prosad Sing v. Pertah Kairee I.L.R. 10 Cal. 86, in which the principle laid down by the Full Bench case was dissented from. That case was followed in the case of Narasimma v. Mutlyan I.L.R. 13 Mad. 451, although the Allahabad Court declined to follow it [Jema v. Ahmad Ali Khan I.L.R. 12 AIl. 207).] Without attempting to lay down any general proposition on the subject, we are of opinion that in the present case the contention of the appellants before us ought to prevail.
7. Section 43 of the Code clearly contemplates a separate suit in respect of each distinct cause of action, the rule, however, being subject to certain modifications, as set out in the following Sections 44, 45, 46 and 47. Section 44 deals with certain causes of action which may not be joined in the same suit.
8. Section 45 says:
Subject to the rules contained in Chapter II and in Section 44, 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.
But if it appears to the Court that any such causes of action cannot be conveniently tried or disposed of together, the Court may, at any time before the first hearing, of its own motion or on the application of the defendant, or at any subsequent stage of the suit, if the parties agree, order separate trials of any such causes of action to be had, or make such other order as may be necessary or expedient for the separate disposal thereof.
When 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, whether or not an order has been made under the second paragraph of this section.
9. The two following sections also appear to refer to cases in which several causes of action are joined against the same defendant or the same defendants jointly. So far as we are aware, there is no provision in the Code allowing distinct causes of action against distinct sets of defendants, that is to say, causes of action in which the defendants are not all jointly interested, to be united in the same suit. Section 53 of the Code provides amongst other things that the plaint may at the discretion of the Court be returned for amendment, if it joins causes of action which ought not to be joined in the same suit; and if the plaint is returned and is not amended within the time fixed by the Court, it shall by Section 54 be rejected.
10. We are of opinion, therefore, that when a suit is instituted upon distinct causes of action against different sets of defendants severally, the Court may fairly be said to be unable to entertain it, and the reason is of a like, nature with defect of jurisdiction. We hold therefore that Section 14 of the Limitation Act applies, and that the plaintiffs are entitled to deduct the time during which they were prosecuting the former suit, and that the present suit is not barred by limitation.
11. The result is that the appeal must be allowed. The decree of the Lower Appellate Court is reversed, and that of the first Court restored with costs in both the Appellate Courts.