1. The facts giving rise to this rule briefly ate as follows : The present plaintiffs are the heirs and legal representatives of the original plaintiff Bishwanath Singh. For the sake of brevity and convenience I shall deal with this rule as if Bishwanath Singh is still alive and shall describe him as the plaintiff.
2. The plaintiff instituted a suit in the Court of the Second Subordinate Judge, Hooghly against Ram Narain Singh for damages for breach of contract, alleging that Ram Narain Singh had entered into a contract with him agreeing to supply him with 10 lakhs of manufactured bricks in return for 250 tons of coal which the plaintiff would supply to him. The plaintiff carried out his part of the contract but Ram Narain Singh in collusion with one Bindeswari Singh removed a large number of bricks which were manufactured by Ram Narain Singh for the purposes of the contract. In spite of repeated demands Ram Narain Singh refusel to perform his part of the contract and the plaintiff claimed damages to the extent of Rs. 20,000/-for breach of contract. This was the suit as originally framed. Thereafter the plaintiff applied for attachment before judgment of the bricks and at this stage he came to know that the defendant Bam Narain Singh Bindeswari Prosad Singh, Hazari Singh, Rajen Singh and Thakur Shew Narayan son of Bindewari Prosad had conspired together and pursuant to that conspiracy, Ram Narayan Singh broke the aforesaid contract. Having obtained this knowledge the plaintiff applied to amend his plaint by alleging this conspiracy and by adding Bindeswari Singh Hazari Singh, Rajen Singh and Thakur Shew Narayan as defendants. He amended his claim by claiming Rs. 20,000/- as damages against all the five defendants. The application was rejected by the Subordinate Judge. The plaintiff then moved this Court but did not make the defendants proposed to be added par-ties to this rule. The rule was heard ex parte and made absolute, the amendments were, allowed and the proposed defendants were made defendants 2-5 These defendants then applied to this Court for expunging their names from the record. This Court held that they had no locus standi in the rule as they were not parties at the time when the rule was disposed of and rejected the application. This Court stated that these added defendants were not bound by the order and it was open to them to agitate the matter before the trial Court. This last order was passed by my brother Chunder. The added defendant 2 then applied before the Subordinate Judge for striking out the names of the added defendants. The learned Judge has refused the application stating that no good ground has been made out for striking out the added defendants' names, Against this order the present rule has been obtained by the defendant Thakur Shew Narayan praying that his name and those of the other added defendants be struck out.
3. The only question which falls for decision in this rule is whether the plaintiff should be allowed to amend his plaint in the manner stated above and add the petitioner and the other three persons viz., Bindeswari, Hazari Singh and Rajen Singh as defendants in the Suit.
4. The contention on behalf of the petitioner is that the amendment to the plaint and the aforesaid addition of parties makes the suit bad for multifariousness and that this course is not sanctioned by the provision of the Code of Civil Procedure. In developing this argument learned advocate points out that the plaintiff's claim against the defendant l Ram Narayan Singh is one for breach of contract whereas his claim against the others is for damages for the tort of conspiracy. These claims, he argues, are based on different causes of action which are not common as against all the defendants and therefore they cannot be united in the same suit. He refers to Order 2, Rule 3 (1), Civil P. C., which is in the following terms
'Save as otherwise provided, a 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.'
5. On behalf of the plaintiff opposite party learned advocate argues that the plaintiff bases his case on one material fact viz., the breach of the contract made between him and the defendant 1 Ram Narayan Singh. This breach was brought about by all the defendants in conspiracy and therefore it was permissible to sue all the defendants for relief in one suit. He relies for this contention on the provisions of Order 1, Rule 3 which 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 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.'
6. I must say at the outset that the judgment of the Court below is not of much assistance to us. The points raised have not been discussed and the application has been disposed of by saying that no reason had been shown why the amendment or addition of the defendants should not be allowed.
7. In my opinion the suit is properly framed and there is no misjoinder of parties or causes of action. Before dealing with the case law on the subject I propose to consider the matter by reference to the words of the relevant provisions of the Code of Civil Procedure. I have already quoted Order l Rule 3. In my opinion this suit clearly falls within its provisions. The first point to be determined is whether the 'right to relief' claimed by the plaintiff is 'in respect of or arising out of the same act or transaction or series of acts (sic) transactions.' The relief claimed by the plaintiff is damages. The damages claimed is in respect of the breach of the contract between him and Ram Narayan Singh. So far as Bam Narain Singh is concerned, the breach alone is sufficient to afford relief. As regards the ether defendants in addition to the breach the plaintiff must prove that there was a conspiracy between them and Ram Narain Singh to Cause the aforesaid breach. But there can be no claim for damages against any of the defendants unless there has been a breach of contract and the plaintiff claims one sum and are sum only against all the defendants, viz., compensation for this loss occasioned by the breach. Separate sums are not claimed for breach of contract and for tort. Thus the relief or damages arises out of the act of causing the breach of contract. To me it seems clear that the relief is undoubtedly 'in respect of or arising out of the same act or transaction' or at any rate out of ''the same series of acts or transactions.' The act or transaction or the series of acts or transactions is the breach of contract and its attendant circumstances, viz., the conspiracy to commit the breach. Thus one part of Order l, RULE 3 is satisfied.
8. Next it must be established that the right to the relief must exist against all the defendants 'jointly severally or in the alternative.' Now the plaintiff, if he succeeds, is entitled to get damages against all the defendants jointly and severally or in the alternative. All and each of the defendants would be liable to pay damages if it is proved that the contract was broken as a result of the conspiracy alleged. If the conspiracy is not proved but the breach of contract only is proved the plaintiff would have the right to get damages in the alternative against defendant l Ram Narayan Singh only. Thus the right to relief is available against all the defendants jointly, severally or in the alternative.
9. The last essential required by Order 1, Rule 8 is contained in the words 'where if separate suits were brought against such persons, any common question of law or facts would arise'. Let us assume separate suits being brought against each of the defendants; would then a common question of fact arise In my opinion, it certainly would. The vital question, viz., the breach of the contract would have to be proved in each and every case, Order 1, Rule 3 does not stipulate that all the questions of law or fact must be common to the defendants. It is sufficient if one common question arises. I realise that the common question must be a substantial one affecting the subject-matter of the suit. In the present case the breach of contract is the very foundation of the suit. If it is not proved the whole suit would fail. This question, viz., the breach of the contract would be common to all the suits if separate suits were instituted against each of the defendants. I am of opinion, therefore, that all the requisites mentioned in Order l, Rule 3 are present in this case and that a suit like the present one is sanctioned by the provisions of Order l, Rule 3.
10. It is argued on behalf of the petitioner that Order l, Rule 3, is merely permissive and that a suit, even if it complied technically with the provisions of the rule should not be permitted if it causes embarrassment or injustice to the parties. This is perfectly correct. The Court may in such case direct that the plaintiff should confine his suit to particular parties on grounds of convenience or it may make suitable orders in order to protect any of the defendants from incurring unnecessary costs by directing them to appear at certain stages only of the suit where their presence was necessary, e.g., the Court may try certain issues preliminarily in the presence of only defendants who are immediately concerned in the determination of those issues. In the present case, however, these considerations do not arise. It is of utmost importance to all the defendants to show that there was no breach. If they succeed in this all of them would be exempt from the plaintiff's claim. Once the breach is proved all the defendants would be involved in the issue regarding conspiracy, I realise that even if the breach of contract is proved that the added defendants would not be liable unless conspiracy is proved. In the investigation regarding whether there was a conspiracy or not all the defendants, however, would be interested. Thus it would be proper and convenient, if not necessary, for all the defendants to be present throughout the suit. In this connection I would refer to Order 1, Rule 5 which says that 'It shall not be necessary that every defendant shall be interested as to all the relief claimed in any suit against him.'
This rule indicates the extent to which the law of procedure has gone to prevent multiplicity of suits. It shows that defendants may be joined even if the claims against them are different in extent or in nature so long as the provisions of Order l, Rule 3 are complied with.
11. I shall now take up for consideration the argument that Order 2, Rule 3, Civil P. C. prohibits a suit of this description. It was argued that, whereas Order l, Rules 1 and 3 deal with joinder of parties, Order 2, Rule 3 deals with joinder of different causes of action and that as the present case was one of a joinder of different causes of action Order 2, Rule 3 and not Order J, Rule 3 would apply and that by reason of the provisions of Order 2, Rule 3, the suit as framed was not maintainable.
12. I shall assume for the moment that the plaintiff's cause of action against defendant 1 Bam Narain Singh is different from his cause of action against the other defendants. Bead in isolation Order 2, Rule 3 does cot permit a suit of this description. The rule permits the joining of several causes of action in one suit against one defendant or one group of defendants jointly. It does not sanction a single suit when the cause of action against one defendant is different from the cause of action against another. But it has been held in numerous cases that Order 1, RULE 3 is not confined to joinder of parties only but that it also embraces joinder of causes of action against different parties. It has been further held that Order 2, Rule 3 must not be interpreted so as to override or render nugatory the provisions of Order 1, Rule 3. This view was taken in the case of Ramendra Nath v. Brojendra, Nath, 45 Cal. 111 : (A. I. R. (5) 1918 Cal. 858). I am relying on this case at present for no other purpose than that of showing that although a suit as framed may not be in accordance with the provisions of Order 2, Rule 3, nevertheless, it would be maintainable if it complied with the provisions of Order 1, Rule 3 and for the purpose of showing that Order 1, Rule 3 deals not only with joinder of parties but also with joinder of causes of action. In other words, I rely upon this case for the proposition that it is permissible to join different causes of action against different defendants in one suit so long as the stipulations set out in Order 1, Rule 3 are complied with. The English cases which interpret a similar rule contained in Order 16 of the R. S. C. rules are dealt with in this case and it is, therefore, unnecessary for me to deal with the English cases on this point separately. I can do no better than reproduce the remarks of Woodroffe J. at pages 122-124:
'On the merits the question is this. The frame of the suit is admittedly not supported by Order 2, Rule 3. It is then said that it is justified by Order 1, Rule 3. To this it is replied firstly, that this last rule deals with parties and not joinder of causes of action, and in the alternative and on the supposition that it does deal with joinder of causes of action, the present case does not on the facts fall within the rule. Order 1 is headed 'parties' and Order 2 'frame of suit.' The question of parties involves that of cause of action and vice versa A person is made a party because there is a cause of action against him; and where causes of action are joined, parties are joined. In a perfectly framed Code which dealt in separate chapters with parties and causes of action, the provisions should be exactly parallel, looking at the same matter from its different aspects in a way according to which the provisions of one Order would be in conformity with the provisions of the other. So much may be conceded, and if the solution of the question were doubtful, one might have hesitated on this ground to hold that a suit might be framed under Order 1 in a manner not provided for by Order 2, which, according to its heading, specifically deals with the frame of a suit. But in the present case we have to deal with the wording of a rule, the meaning of which has been construed. There are decisions of the English Courts on rules from which our own are taken, These decisions are subsequent to the year 1896, when Order 16, Rule 1 was amended. It has been held that that order deals not only with joinder of parties but also joinder of causes of action, notwithstanding that Order 16 like Order 1 is headed parties only (Campania Sansinena DeCarnes Congeladas v. Houlder Bros. and Co. Ltd., (1910) 2 K. B. 354 : (79 L. J. K. B. 1094). Bullock v. London General Omnibus Co.,(1907) 1 K.B. 264 at pages 271, 272 : (76 L. J. K. B. 127), Markt Co., Ltd. v. Knight Steamship Co., Ltd., (1910) 2 K.B. 1021 at p. 1036 : (79 L. J. K. B. 939) and Times Cold Storage Co. v. Lowther and Blankley, (1911) 2 K. B. 100 at p. 107 : (80 L, J. K. B. 901).
This, notwithstanding incidental observations to a contrary effect In Thompson v. London County Council, (1899) 1 Q. B. 840 at p. 842 : (68 L. J. Q. B. 625), is not disputed before us. The decisions in the Bombay High Court given in 1908 and referred to in Mt. Janki-bai v. Shrinivas Ganesh, 38 Bom. 120 : (A. I. R. (1) 1914 Bom. 193) do not rifer to the latest English decisions. It is conceded before us that it cannot be now contended that Order 16 from which Order 1 is taken does not refer to joinder of causes of action. These decisions were on Order 16, Rule 1 corresponding to Order 1, Rule 1 bat are equally applicable to Order 1, Rule 3 which is in exactly the same terms as Order 1, Rule 1 substituting the word 'defendant' for 'plaintiff.' Indeed, in England where the rule relating to the joinder of defendants is in differing terms from that relating to joinder of plaintiffs it has been held that they should be interpreted on similar principles. It must be held then that Order 1, Rule 3 does refer to joinder of causes of action . . . .'
13. After discussing the English cases in respect of Order 16 of the R. S. C., Mookerjee J. at p. 134 observes as follows:
'The matter is one essentially of substance and not of form, as Romer L. J. observed in Frankenburg v. Great Horseless Carriage Co., (1900) 1 Q. B. 504 : (69 L. J. Q. B. 147) and I am not prepared to put a narrow construction upon the provisions of Order 1. On the one hand, we have the fundamental principle that needless multiplicity of suits should be avoided; on the other hand, we have the equally essential principle that the trial of the suit should not be embarrassed by the simultaneous investigation of totally unconnected controversies. The legislature has effected a compromise of these two principles by means of the rules embodied in Orders I and II which may possibly overlap to some extent in their application to concrete cases, It is not the function of the Court, however, to determine how far the rules are appropriate we are bound to interpret them In their natural sense and apply them to the circumstances of each case. I hold, accordingly,, that Order 1, Rule 1 and Order 1, Rule 3 apply to questions of joinder of parties as also of causes of action, and I respectfully dissent from the contrary view adopted by Davar J. in Umabai v. Bhau Balwant, 34 Bom. 358 :: (3 I. C. 165) and Mt. Jankibai v. Shrinivas Ganesh, 38 Bom. 120: (A.I.R. (1) 1914 Bom. 193) without examination of or reference to the later decisions in England as to the scope and meaning of the corresponding rules in that system,'
14. We are bound to follow this principle which, I would say with respect, is the correct one, there is no decision of this Court, so far as I am aware, where a contrary view has been taken of this rule as it emerged after amendments in 1908.
15. Next it was argued on behalf of the petitioner by Mr. Sen that there is no common question of law or fact affecting all the defendants in this suit. He contends that a common question of fact means a question of fact of such a kind that if it is decided in favour of the plaintiffs it would make all the defendants liable. He points out that if the plaintiff succeeds in proving only a breach of contract, he would not get damages against the added defendants. He would get relief against the original defendant alone. To succeed against the other defendants he would have to prove conspiracy as well. Thus he argues there is no single fact or group of facts which if proved would entitle him to relief against all the defendants and, that being so, it cannot be said that there is a common question of fact. In my opinion this argument is fallacious. I would test its validity in this way. Suppose the plaintiff failed to prove a breach of contract would not the suit fail against all the defendants It surely would. Thus the breach of contract is a question of fact which affects all the defendants; it is therefore a common question of fact which must be proved against all the defendants in the suit. It is true that even if this common question of fact is proved an additional fact viz., conspiracy must be proved if the added defendants are to, be made liable but this does not matter. Order 1, Rule 3 does not stipulate that all the questions of fact arising in the suit must be common. It is sufficient if one common question of fact arises. I realise that this common question must be one which is not an inessential or trivial question upon which nothing turns. It must involve an important fact which forms the basis of the suit. The alleged breach of contract is certainly such a basic fact. The wording of the rule is quite clear on the point and any reference to case law is hardly necessary. There are however cases in which this question has been considered and decided which support my view. I would refer again to the case of Ramendra Nath v. Brajendra Nath, 45 Cal. 111: (A.I.R. (5) 1918 Cal. 858) where Mookerjee J. at pp. 135 and 136 makes the following observations:
'As regards the second test, It is clear that if different suits were instituted, at least one common question of fact would arise, namely, the exact nature of the act imputed to Brajendra Nath Dass, which would have to be investigated, presumably on the same evidence separately adduced in several suits. Here, again, it is important to observe that the Code does not require that all the questions of law or fact which arise should be common to all the parties. The contention of the respondents was, in fact, lased upon two fallacious assumptions, namely, first, that the rules require that each of the defendants should have been concerned in all the transactions, and, secondly, that, if different suits were brought, no question would arise in which all the defendants were not interested. There is clearly no foundation whatever for either of those assumptions.'
16. I would also refer to the observations of Woodroffe J. in the same case at pp. 124-125:
'The next question then is whether the joinder in the present case is justified by that rule. It is contended that it is not, it being argued that there are different sets of transactions 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. Dass. If such fraud is proved the question is, did the defendants who all claim under B.N. Dass obtain any title If the plaintiff fails to prove fraud on the part of B.N. Dass, the case fails against all the defendants. If ha proves fraud, it may be that the defendant 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. Dass, 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 common question arises may be tested by seeing what the evidence will be. In the shorthand notes Chitty J., expressed the opinion that the evidence will be common and that if there were separate suits, they might be heard together with consent. In the judgment the learned Judge qualified this statement by saying that this was true up to a point. It is true so far as the plaintiff's cause of action, as based on the fraud of B.N. Dass, is concerned though there may be some facts which are particular to particular parties being offered in proof of the plaintiff's case (e.g. 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.'
17. The same view was taken by this Court in the case of Harendra Nath v. Puma Chandra : AIR1928Cal199 . I would refer particularly to the passage appearing at p. 171 where Mukherjee J. quotes certain observations of the Court of appeal in Payne v. British Time Record Co. Ltd., (1921) 2 K.B. l : (90 L. J. K. B. 445) to the following effect :
'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.'
18. The last argument on behalf of the petitioner may be stated thus. The cause of action against the original defendant is based on contract while the cause of action against the other defendants is based on tort. Causes of action so differently based cannot be joined. I am not prepared to accept this view. There is nothing in the provisions of the Code of Civil Procedure which supports it. As pointed out above the Code permits a joinder of different causes of action against different defendants. The fact that so far as the different defendants are concerned, their liability arises out of their different legal relationships with the plaintiff would not, in my opinion, bar this suit and drive the plaintiff to institute separate suits. Order 1, Rule 8 and Order 2, Rule 4 are directed towards avoiding multiplicity of litigation. What would be the result of giving effect to the view propounded The plaintiff would first have to institute a suit, against defendant 1 alone and establish a breach of contract. If he succeeded in so doing, he would then have to institute another suit against defendant 1 and the added defendants and again establish, first, the breach of the contract because the other defendants not being parties to first suit would not be bound by any decision arrived at therein; he would also have to establish conspiracy. It may be that in the second suit the added defendants may succeed in showing that there was no breach of contract. This would lead to conflicting decision on the same issue. It is to avoid such anomalies and inconsistencies that the Code has provided that one suit is permissible. It is true that the claim against defendant l 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. This view has been taken by a Special Bench of the High Court at Rangoon in the case of P.B. Boss v. M. R. N. Chettyar Firm, A. I. R. (25) 1938 Rang. 185 at p. 188 : (1938 Rang L. R. 303 S. B.) Dunkley J. observes :
'The learned Judge appears to have thought that there was a misjoinder of defendants in the original suit, and that a decree based on a breach of contract against one defendant and a decree for damages in tort against another defendant cannot be made in the same suit. With the greatest respect, this is a misconception of the law. There was no misjoinder of defendants In this case; the provisions of Order 1, Rule 3, Civil P. C., cover the joinder of the three defendants in the suit in the Township Court. There is no reason why a decree for damages for breach of contract against one defendant and a decree for damages in tort against another defendant should not be passed in the same action; in R.T. Grant v. Australian Knitting Mills Ltd., (1936) A. C. 85 : (A. I. R. (23) 1936 P. C. 34) the Privy Council made a decree against the retailer of the underwear for breach of contract and against the manufacturer of the underwear in tort.'
The Privy Council decision is R.T. Grant v. Australian Knitting Mills Ltd., and it is also reported in A.I.R (23) 1936 P. C. 34. The Privy Council upheld a decision of the Australian Court awarding damages in the same suit against a retailer for breach of contrast and against the manufacturer for the negligence of tort. I would refer to p. 39 of the report where the Lordship said :
'The liability of each respondent depends on a different cause of action though it is for the same damage. It Is not claimed that the appellant should recover his damage twice over.'
The claim against both retailer and manufacturer was upheld. This principle would apply to the present case.
19. I would also refer to the case of Frankenburg v. Great Horseless Carriage Co., (1900) 1 Q. B. 504 at p. 509 : (69 L. J. Q. B. 147) where the Court of Appeal refused to give effect to a similar technical objection. They said :
'In substance the shareholder had one grievance. Call it because of action or what you like, and in substance he has one complaint and all the persons he sues have, according to him, been guilty of conduct which gives him a right to relief in respect of that one thing which they have done, namely, the issuing of a prospectus.'
The position here is the same. 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. I can see no reason why one suit against all should not be allowed.
20. I do not propose to deal with the cases on this point before the amendment of 1908. There were two lines of thought one favouring the view propounded on behalf of the petitioner and the other in favour of the view I have taken. The one view was taken in the case of Narsingh Das v. Mangal Dubey, 5 ALL. 163 : (1882 A. W. N. 202 F. B.) and the other view in Dampanaboyina Gangi v. A. Ramaswami 25 Mad 736: (12 M.L.J. 103). The amendment of the old law by changing the words 'in respect of the same matter' into 'in respect of or arising out of the same act or series of acts or transaction' have given effect to the latter view. The case-law on the question before 1908 is in my opinion of little use in determining what the law now is under the Code of 1908 and it would be unsafe and inappropriate to adopt the principles laid down in those cases to cases arising after 1908 when the Legislature amended the Code radically on this question by the provisions of Order 1 and Order 2. We are bound by the decisions interpreting the rules contained in these new orders and these decisions I would respectfully repeat lay down the correct principles of interpretation of these rules.
21. I hold therefore that the order of the Court below is correct. The rule must be dis-charged with costs.
22. K.C. Chunder J.--The facts are very simple. (After stating the facts of the case, his Lordship proceeded as follows:) Mr. Sen appearing on behalf of the petitioners, defendants 2 to 5 contended that as there was a misjoinder of defendants and causes of action, defendants 2 to 5 should be dismissed from the suit, and we should decide the point instead of sending the case back to the Court below as all the materials are also before us.
23. It is unnecessary for me to go into the question when joinder of parties and causes of action are allowed under Order 1 and Order 2, Civil P. C. There are various kinds of joinders and different principles have been applied in different classes of cases. The present case is one of joinder of defendants and causes of action though the plaintiff is the same. I do not want to express any opinion on the law as to mis-joinder of defendants and causes of action. Such cases have already been decided by this Court and by the Judicial Committee.
23a. I agree with the order discharging the rule solely on the special facts and circumstances of this case.
24. In the present case the cause of action, i.e., the fact in which right to relief, and not mere relief depends against defendant 1 is only that of breach of contract. All that he is interested in is the proof that there was a contract and that the contract was broken by him without just or lawful excuse. He is not concerned at all with the cause of action against the other defendants, namely, the procurement of the breach, and not the actual breach by defendant 1, in their own interest and adverse to the interest of the plaintiff by defendants 2 to 5. In the present case defendant 1 would no doubt be entitled to say that as far as he is concerned he is not at all interested in the cause of action against the other defendants, i.e., whether they or any one else procured the breach and the joining of his case with that of the other defendants may be said by him to be harassing and vexatious to him. But in the case of defendants 2 to 5 the breach of contract by defendant 1 will also have to be proved by the plaintiff in order to get damages. That will, therefore, be a necessary question to decide in the case of all the defendants. Therefore, as far as the case of defendants a to 5 is concerned a joinder of their case with those of defendant l really does not cause any harassment or vexation to them. I have to point this out as this case is a very special and peculiar nature unlike any other case of misjoinder. Here, all the facts that will have to be proved against defendant 1 will have to be proved in the case of defendants 2 to 5 but not vice versa. Here, the person really entitled to complain of misjoinder and of harass-meat and vexation is defendant 1 alone. Defendant I was a party to the first application before the Subordinate Judge for amendment of plaint and joinder of parties which was then rejected by the Subordinate Judge. He was a party in the revision petition before this Court which revision petition was allowed ex parts against him and the joinder and the amendment of the plaint allowed. Since then he has not contested that order. The contest is by other persons, namely, defendants 2 to 4 who would not be in any way harassed and vexed by the joint trial of the claim against them with that against defendant l, and as far as they, i.e., defendants 2 to 5, are concerned the trial of the suit will not be at all embarassed.
25. Therefore, in view of the special and very peculiar facts of this case I am of opinion that the order previously passed allowing the amendment of the plaint and the joinder should not be disturbed and defendants 2 to 5 should not be dismissed from the suit and the suit should be allowed to proceed as it is being done now.
26. The rule is, therefore, discharged with costs.