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Maharajah Birendra Kishore Manikya Bahadur Vs. Padma Lochan Banikya and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported inAIR1919Cal343,51Ind.Cas.826
AppellantMaharajah Birendra Kishore Manikya Bahadur
RespondentPadma Lochan Banikya and ors.
Excerpt:
civil procedure code (act v of 1908,), order ii, rule 3(1) - causes of action, joinder of--different causes of action against same defendants, whether may be joined in one suit-contribution, suit for. - .....are co-sharers in certain tenures. the superior landlord brought two suits for rent and obtained decrees jointly against the plaintiff and the defendants. the decrees were executed and the tenures were put up to sale. thereupon the plaintiff paid the in the decretal amount and sued the defer darts for contribution claiming against each a specific sum of money according to his share. the suit has been thrown out by the courts below, mainly on the ground that as there were two decrees for two different amounts and as the plaintiff satisfied these separately on two different occasions, there were different causes which could not be joined in the same suit.3. order ii, rule 3(1), civil procedure code, lays down that 'save as otherwise provided, a plaintiff may unite in the same suit.....
Judgment:

1. This appeal arises out of a suit for contribution.

2. The plaintiff and the defendants are co-sharers in certain tenures. The superior landlord brought two suits for rent and obtained decrees jointly against the plaintiff and the defendants. The decrees were executed and the tenures were put up to sale. Thereupon the plaintiff paid the in the decretal amount and sued the defer darts for contribution claiming against each a specific sum of money according to his share. The suit has been thrown out by the Courts below, mainly on the ground that as there were two decrees for two different amounts and as the plaintiff satisfied these separately on two different occasions, there were different causes which could not be joined in the same suit.

3. Order II, Rule 3(1), Civil Procedure Code, lays down that '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 defendants or the same defendants jointly may unite such causes of action in the same suit' and Order II, Rule 6, provides that where it appears to the Court that any causes of action joined in one suit cannot be conveniently tried or disposed of together, the Court may order separate trials or make such other order as may be expedient.' There is, therefore, nothing in the law to prevent two causes of action being joined in one suit.

4. It is pointed out on behalf of the respondents that the plaintiff has failed to prove the shares of the defendants in the tenure, and that was one of the grounds upon which the decrees of the Courts below proceeded. It appears that the plaintiff set out the amount he claimed against each of his co-sharers in the two tenures, but the share of each defendant was not mentioned in the plaint. But most of the defendants do not appear to have taken exception on the ground of shares, their defences on the merits being that they had paid up their shares of the rent to the superior landlord and that, therefore, they were not liable; and although some of the defendants made a vague assertion that their share of the jama stated in the plaint was not correct, they did not state what their share was. The real defence, as already stated, was that the defendants' share of the rent had been paid by them. The Courts below appear to have dismissed the suit really on the ground of misjoinder of causes of action. Tie learned Munsif said: 'As the suit fails on a preliminary point and as the plaintiff is not very much to blame for this, I direct that the partus should tear their own costs.' The learned District Judge also agreed with the learned Munsif.

5. In these circumstances, we think that the decrees of the Courts below should be set aside and the case sent back to the Court of first instance in order that it may be tried according to law. The Court will allow the plaintiff to amend the plaint (by specifying the shares of the defendants) on such terms as to costs as it may think proper.

6. Costs to abide the result.


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